Private law theory must confront the plurality of values that inform the problems that private law addresses in practice. We consider Hanoch Dagan’s and Michael Heller’s The Choice Theory of Contracts as a case-study in the promise and perils that embracing plural values poses for private law theory.
We begin by arguing that private law theory cannot ignore value pluralism and identify three approaches that theory might take to pluralism. We call these approaches capitulating to, leveraging, and embracing value pluralism. We illustrate each approach and assess its strengths and weaknesses.
Theories that capitulate to pluralism simultaneously limit their scope and hamper their persuasiveness even within their restricted domains. Theories that leverage pluralism limit their domains more dramatically still. And theories that embrace pluralism are difficult to operate in practice without abandoning their pluralist roots.
We briefly illustrate the drawbacks of capitulating to and leveraging pluralism with examples from recent contract theory. We then take up theories that embrace pluralism in greater detail, by studying Dagan’s and Heller’s approach. We argue that Dagan and Heller do not solve the deep problems that operationalizing their embrace of pluralism inevitably engenders.
Markovits, Daniel and Schwartz, Alan, Plural Values in Contract Law: Theory and Implementation (December 26, 2018). 20(2) Theoretical Inquiries in Law (June 2019).