This is a contribution to the Law and Contemporary Problems symposium issue, ‘Contract in Crisis’, reflecting on contract law and the COVID-19 pandemic.
Is the institution of contract law in crisis? Contract and other rights are an institution of the Gesellschaft, the sociologist Ferdinand Tönnies’s metaphor for modern society. There entitlements reify in abstract principles and rules, whether or not the state enforces them. Moral and social norms, customs, and courtesies are more evocative of the Gemeinschaft, the corresponding metaphor for the traditions of religion, family, tribe, or community. The irony is the similarity between appeals to authoritative sources, whether legal or divine. The arc of history is only metaphorically from Gemeinschaft to Gesellschaft. We can still react to crises, like financial meltdowns or global pandemics, by the invocation of rights or the granting of courtesies. This essay considers whether the reification of entitlements in legal rights (including contract) contributes or detracts from our ability to get along in a reasonable and humane way. The ‘crisis’ is far less about elements of doctrine than it is of morality; less about the enforcement of rights and more about the holders’ willingness to set them aside. During crisis, tunnel-visioned and slavish devotion to abstract contract rights may well be a culprit, not a hero.
Lipshaw, Jeffrey M, Between Rights and Rites: The Ironies of Crisis and Contract (July 21, 2021). Law and Contemporary Problems, forthcoming.