12 November 2015

The Aesthetics (!) of Contract Theory -- Part 3

Given the lengthy breaks between posts you might want to prime the pump by reading Part 1 here and Part 2 of this short series here. A very brief recapitulation. Co-authors Efi Zemach and Omri Ben-Zvi argue here that neither of the two leading theories of contract law can account for all the "facts" of that law without remainder. In other words, many of rules of contact law are consistent with furthering human autonomy (particularly the rules of contract formation) while others are better justified by considerations of utility or welfare maximization.

Autonomy and efficiency are thus pictures of the law (hence the authors' use of aesthetics in their title) but contract law cannot be derived from either of them. Autonomy and efficiency are merely lenses by which the otherwise bewildering array of of discordant rules of contract law can be brought into focus. Yet the narrowing effect of either len's focus inevitably omits significant amounts of material that is outside its field of vision. To paraphrase only slightly, contract law is not really a rigid grid of formal rules, nor is contract law a social force moving toward ever-increasing supply of subjective wealth; instead, we choose to see contract law as one or the other since that allows us to make sense of it.

As they proceed, Zemach and Ben-Zvi suggest a recently bruited solution to the tunnel-vision effects of autonomy or efficiency: Why not both?
Drawing on the notion that each theory contains genuine and valuable insights, but none is capable of explaining or justifying the complete normative sphere, pluralists have argued against the exclusiveness of a single approach, suggesting instead a synthesis of many principles.
This solution to the problem caught my eye. After all, I consider myself a pluralist of contract theory. (For examples of my pluralistic endeavors download Principled Pluralism and Contract Remedies (here) or Mission Possible: A Paradigm for Analysis of Contractual Possibility (here) or even Consideration in the Common Law of Contracts: A Biblical-Theological-Critique (here)). Nonetheless, the pluralism  to which Zemach and Ben-Zvi attend differs from mine.
While I ground my triperspectival approach to contracting and contract law in the covenantal relationship among God, creation, and human beings existing in/as images of God, Zemach and Ben-Zvi "focus on unprincipled pluralism, which holds that there is no meta-principle or overarching theory that determines a-priori which of the principles is superior when justifications collide." (Emphasis added.)

In any event, they paint in broad stroke the aesthetics of unprincipled pluralism:
Our analysis reveals that pluralism too rests on a single (one is tempted to say unitary aesthetic). The pluralist project is informed by a particular aesthetic vision. This aesthetic--the "dissociative aesthetic''--is responsible for pluralism's unique characteristics.
In other words, from an aesthetic perspective, pluralism is not pluralistic; it "is on equal terms with other first-order contract theories in the sense it is presented in a manner that presupposes a single aesthetic." Unprincipled pluralism's dissociative aesthetic, however unitary in description, is not unifying in effect, at least not immediately so. In practice, the dissociative aesthetic briefly suspends belief in any unifying theory and thus permits the lawyer or judge to freely associate the rules of law, which "allows us to begin with a 'clean slate' on which we proceed to construct our desired projects."

While I understand the point Zemach and Ben-Zvi are making, that good lawyers and judges can temporarily prescind from any theory they might otherwise hold, yet they must "put Humpty together again" when and as they reach a conclusion. Thus on my account even this dissociation and subsequent re-association is not unprincipled.

Or, perhaps better put, the principled version of pluralism I have described deploys pluralism for at least two reasons or ends. First, principled pluralism recognizes human finitude; in other words, no human-generated account of the phenomenon of contract law will ever be complete. Pluralism recognizes our limits when it comes to explaining anything, including contract law. Second, principled pluralism is more than a catch-as-catch-can means of bringing a disordered state of reality into momentary focus. It is instead an example of the relationship between practical and theoretical reason, phronesis and episteme. On the one hand, finite human beings can never fully get their hands around any phenomenon. On the other, the universe, including human activity, is ordered to an ultimate end. In short, pluralism of a principled sort is the best means of justifying and criticizing contract law.

This three-part account should be enough for anyone's taste. However, I have it on good authority that a response/rejoinder may be forthcoming so stay tuned.

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