"Contract Theory and the Limits of Reason"

Nearly a half-decade ago I wrote a series of three posts reacting to a draft of an article by Efi Zemach and Omri Ben-Zvi. Both authors are members of the faculty of law at the Hebrew University of Jerusalem. You can read my three-parter titled The Aesthetics (!) of Contract Theory here, here, and here. A final version of their article came out in 2017 in the Tulsa Law Review (download here).

I recently finished reading the published paper and it differs little form the draft on which I posted. I will thus refrain from making substantial additional comments. You can read their article at the link above and my observations for yourself but to whet your appetites consider the following summary comments:

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. 

They 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."

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."  ["Grid" scholars in turn see their task as framing law as a "space" that can be conclusively mapped.]

Two new and related observations, however, did come to mind as I was rereading their paper. First, Zamach and Ben-Zvi made much of the fact that the early "energy scholars", those of the reliance sort (e.g., Fuller & Purdue and Grant Gilmore) deployed the history of the common law of contract in support of their conclusions. They did not, however, go on to observe that the contemporary "energy" folks--law and economics--have relatively little use for legal history. For them the history of the common law functions as little more than examples for the aesthetic "take" that the law of contracts is ever-developing in a wealth-maximizing direction.

What accounts for the contemporary de-valuing of history among scholars of a law-and-econ bent? I believe the answer to that question is found in my recent post on the work of Nate Oman, "Private Law and Local Custom" (here). More to the point: few folks deploying the "energy grid" really knows their legal history. The pre-theoretical commitment to a view of historical progress and dynamism reduces the history of the common law of contracts to mere grist for the mill; it is deployed only to the extent it is useful. Legal history does not have an integrity of its own.

Contrast this use of legal history with what Nate Oman and others have done, which is to take the historical situatedness of common law cases seriously on their own terms. The history of the common law of contract shows a dynamism--and energy--but it is a dynamic that is responsive to a fuller range of social and cultural (and religious)--and not merely economic--developments. And vice versa--law also influenced then-contemporary social life.

I suspect such an appreciation of legal history on its own terms would also count as an energy aesthetic but one that is more "conservative". Rather than seeing themselves as the vanguard of the "right side of history", scholars who take their history seriously will also take the accumulated wisdom of that history seriously. "The living faith of the dead," as Jaroslav Pelikan would put it.