Private Law Theory

ABSTRACT
The chapter first identifies the two leading monist theories of contract and illustrates their deficits. Autonomy-based accounts that explain contract law as a vindication of promise hold that contract law is designed either to support the practice of promise or to comply with its moral demands. Legal economic theories of contract imply that the rules of contract are or should be set to promote efficient transactions and to minimize litigation costs. I argue that these theories are not determinate in the way they aspire to be. Moreover, they depend on mistaken views both as to the relationship between contract law and relevant moral principles, and as to the kind of analytic order that contract theory can offer with respect to contract law.

The chapter next explores early pluralist theories, or ‘structured pluralism’, distinguishing between horizontal and vertical approaches. Horizontal pluralism holds that distinct features of contract law, such as the rules of interpretation, default rules, equitable remedies, legal damages or defenses are animated by distinct principles and normative commitments that balance each other out, albeit with residual tension among them. Vertical pluralism assigns sequential roles to different values, which appear at different ‘moments’ in the justification of rules. In both types of structured pluralism, disparate values fit together to explain contract law but the picture so composed is stable and describes contract law in most liberal societies.

The last part of the chapter discusses democratic pluralism, or more recent approaches to contract law that emphasize the link between pluralism as a feature of contract law and pluralism in the political communities governed by contract law. These theories regard pluralism about contract as a matter of legitimating contract and contract law as social instruments and coercive state action, respectively, in dynamic societies where people disagree about both what they owe each other and which obligations the state should enforce.

Bagchi, Aditi, Pluralism (March 1, 2023) in Research Handbook In The Philosophy Of Contract Law (eds Chen-Wishart and Saprai) (Edward Elgar Publishing Ltd, Forthcoming).