07 October 2015

The Aesthetics (!) of Contract Theory -- Part 2

How quickly time flies. It's been more than two months since my initial post on this mashup of a topic here. Paraphrasing myself,
The authors of the paper under discussion, Efi Zemach and Omri Ben-Zvi, use "aesthetics" as a primarily cognitive (or pre-cognitive) form of analysis "by understanding aesthetics as the space within which jurists make pre-theoretical commitments that shape the way they experience the structure of legal discourse."
In short, how judges and lawyers perceive the "real world" in which they operate cabins the possibilities of their ultimate judgments. The same, as it turns out, is true of legal scholars. Thus, one's pre-theoretical commitment to, say, autonomy over efficiency, disposes one toward a certain conceptualization of the world of contract law.

The aesthetic analysis of Zemach and Ben-Zvi partakes of none of the standard inquires of the contemporary or classical science by that name. Instead, their "aesthetic" analysis runs on a two-track dialectic. In other words, legal theorists can be characterized as pre-scribing to either energy aesthetics or grid aesthetics. Energy folks "see" contract law as about increasing welfare-- dynamo--because,"law itself is but a force, the amalgamation of many individual's choices about how their society should be regulated." And human beings are, as everyone knows, rational wealth maximizers.

Such is old hat but Zemach and Ben-Zvi use the "energy grid" aesthetic as a means to demonstrate that such an approach is pre-theoretical. Its overwhelming contemporary plausibility consists in substantial part in what the scholar and her audience believe even before doing their analysis.

Opposite energy are grid aesthetics. Despite their best efforts, Zemach and Ben-Zvi cannot help but reveal their own pre-theoretical preference for the worldview of energy aesthetics but their preference does not undermine their apt description of grid aesthetics:
Jurists who subscribe to the grid aesthetic think of law as a space that can be surveyed, mapped, and analyzed. Legal questions are answered by first dividing law into sub-sections ... and placing the facts of a given case on the conceptual grid.
In other words, the aesthetic of the classroom at the typical non-elite law school.

Before considering Zemach and Ben-Zvi's discussion of various multi-perspectival approaches to legal theory (which would include me, see here and here), let me end with their trenchant observations of the contemporary world of legal theory:
Commonly put, aesthetics are only useful when not closely examined--that is when the logical implications of the picture they imply are not meticulously pursued. Figuratively speaking, we may say that just like with one's heroes, it is best to keep an appropriate distance from one's aesthetic: Too far, and the excitement eventually wears off; too close, and the illusion becomes clear for what it is.
In other words, "Law is not really a rigid grid, nor is it a moving social force; we choose to see it as such since it allows us to come in contact with it." But a pre-theoretical commitment to an aesthetic--even if inescapable--comes at a price:
This process of aesthetic construction involves some degree of falsification, in the sense that we necessarily have to focus on something and in the process treat other phenomena which we encounter as unimportant. But when we insist on seeing the world solely through the eyes of our aesthetic, the world eventually resists; ... and we are constantly reminded that we have chosen to forget some things that perhaps should not have been forgotten.

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