It's encouraging to read a paper that accords with one's view. It's even better when that paper clarifies what had been implicit in one's writings. It's best when that paper nonetheless fails to solve an important problem. After all, if Nate Oman said everything that I believed about contract law except better, then I might as well pack up and go home.
In "Private Law and Local Custom" (download here) Oman points out the failings in the two leading contemporary accounts for contract law. The leading theory argues that contract law (like all private law) is really public law by another means. A distant number two in the world of contract theory assets that increasing personal autonomy is the heart and soul of the law of contracts.
For well over a century one of the other forms of legal realism in America has sought to uncover the mask of the common law. Starting with O.W. Holmes, Jr., it has become a common creed of the legal academy that contract law exists to serve some other purpose. For all its doctrinal expressions, contract law is really about ... . Of course, there is a remarkable lack of consensus on the "what" of contract law. For Progressive Crits, it's about perpetuating oppression in some form or other. For those inclined to neo-classical economics, contract law exists to get as many folks as possible more of whatever it is they want.
Notwithstanding their ideological pretensions, on closer examination private law generally, including contract law, simply doesn't work as the Crits or Economists say it does (should). As Oman observes, "Private law and common law are the problem children of contemporary legal theory. Both run afoul of the same basic assumption about law, namely that it is primarily a mechanism through which political authorities regulate the conduct of those over whom they exercise power."
Except that's not what the common law actually does. The common law is a form of private law; it empowers private parties to vindicate private wrongs. Unlike public law, the common law doesn't require anyone to do anything. "Rather, the purpose of private law is to empower victims to seek individual justice against those that have victimized them."
Yet there remains a potential problem with this view of private law: isn't the nature of private law adjudication inherently after-the-fact? And if (since) the application of private law is always retrospective between the parties to a lawsuit, doesn't it run afoul of the sense that law-application should be prospective? In other words, doesn't private law have the potential to award a judgment against someone who had no way of knowing that her action was wrong? Correlative to the post-facto problem is the form in which we find the common law: judicial opinions. As first-year law students quickly come to realize, it's no simple matter to tease a legal rule out of a judicial opinion. Judicial opinions certainly do not "read" like statutory or administrative law. In other words, how can common law be "law" when its content is uncertain and opaque?
Here's where Oman does his best work.
I won't elaborate on how Oman responds to these objections. My criticism is his "non-handling" of the second: that classical common law theory was tied to a conception of natural law that is no longer tenable. Oman's response is that no, it wasn't:
Second, as Oman admits in his response to the third objection, the common law "relies heavily on the jury to resolve questions regarding custom." Just so. But equally so the common law relied on the jury's conscience--the epistemic seat of natural law--to apply the common law to a particular dispute. So I argued at some length in Revisiting Unconscionability: Reciprocity and Justice (download here).
These criticisms aside, Oman's piece is a worthwhile contribution to restoring the common law, and classical common law theory, to their foundational place in the understanding of the law.
In "Private Law and Local Custom" (download here) Oman points out the failings in the two leading contemporary accounts for contract law. The leading theory argues that contract law (like all private law) is really public law by another means. A distant number two in the world of contract theory assets that increasing personal autonomy is the heart and soul of the law of contracts.
For well over a century one of the other forms of legal realism in America has sought to uncover the mask of the common law. Starting with O.W. Holmes, Jr., it has become a common creed of the legal academy that contract law exists to serve some other purpose. For all its doctrinal expressions, contract law is really about ... . Of course, there is a remarkable lack of consensus on the "what" of contract law. For Progressive Crits, it's about perpetuating oppression in some form or other. For those inclined to neo-classical economics, contract law exists to get as many folks as possible more of whatever it is they want.
Notwithstanding their ideological pretensions, on closer examination private law generally, including contract law, simply doesn't work as the Crits or Economists say it does (should). As Oman observes, "Private law and common law are the problem children of contemporary legal theory. Both run afoul of the same basic assumption about law, namely that it is primarily a mechanism through which political authorities regulate the conduct of those over whom they exercise power."
Except that's not what the common law actually does. The common law is a form of private law; it empowers private parties to vindicate private wrongs. Unlike public law, the common law doesn't require anyone to do anything. "Rather, the purpose of private law is to empower victims to seek individual justice against those that have victimized them."
Yet there remains a potential problem with this view of private law: isn't the nature of private law adjudication inherently after-the-fact? And if (since) the application of private law is always retrospective between the parties to a lawsuit, doesn't it run afoul of the sense that law-application should be prospective? In other words, doesn't private law have the potential to award a judgment against someone who had no way of knowing that her action was wrong? Correlative to the post-facto problem is the form in which we find the common law: judicial opinions. As first-year law students quickly come to realize, it's no simple matter to tease a legal rule out of a judicial opinion. Judicial opinions certainly do not "read" like statutory or administrative law. In other words, how can common law be "law" when its content is uncertain and opaque?
Here's where Oman does his best work.
The classical theory of the common law offers a solution to this problem. There is no due process [ex post facto] objection to imposing liability on the wrongdoer because at the time she committed the wrong she violated an already existing law. When the judge announces the rule to be applied in the case, she is not creating new law but rather articulating a legal norm that already existed, at least implicitly. (Emphasis added.)Easy to assert but can Oman prove it? In my opinion he comes close to succeeding. I won't review his arguments except to observe that he responds to the leading criticisms of classical common law theory (that the common law changes, contrary to the claims of some of its proponents; that the common law is ineluctably tied to natural law theory, which has been discredited; and that there never was--and certainly isn't now--any common base of social customs to which the common law can point to solve the due process objection ).
I won't elaborate on how Oman responds to these objections. My criticism is his "non-handling" of the second: that classical common law theory was tied to a conception of natural law that is no longer tenable. Oman's response is that no, it wasn't:
The classical common law theory is also not a species of natural law. To be sure, Blackstone's writings contain natural law flourishes, but from the beginning, the classical common law theory denied that the reason of the common law was the reason of the natural lawyers.Oman's argument at this point is wanting for a couple of reasons. First, we must keep in mind the polemical context of Coke's oft-quoted rejection of the place of King James's natural reason in favor of the common law's "artificial reason". The same is true of the earlier dialogue in Christopher St. Germain's Doctor and Student. Both were overstatements made in the context of hot political disputes. Coke with the imperious James I, and St. Germain in support of the Henrican Reformation (Revolution) against continuing support for Papal authority in England.
Second, as Oman admits in his response to the third objection, the common law "relies heavily on the jury to resolve questions regarding custom." Just so. But equally so the common law relied on the jury's conscience--the epistemic seat of natural law--to apply the common law to a particular dispute. So I argued at some length in Revisiting Unconscionability: Reciprocity and Justice (download here).
These criticisms aside, Oman's piece is a worthwhile contribution to restoring the common law, and classical common law theory, to their foundational place in the understanding of the law.
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