The Promise and Problems of Universal, General Theories of Contract Law

Against Parochialism in Contract Theory: A Response to Brian Bix

“…There is plenty to agree with in Brian Bix’s recent article problematizing universal and general theories of contract law (Bix ). Bix is certainly right to note that most contract theorists—and private law theorists, for that matter—are typically silent about the types of claims they make and the scope and ambitions of their theories.…”

“…The focus should thus be the practice of contract law in general, rather than a particular system. This suggests that, while it is true that there is a problematic divergence between the universal claims of certain theories of contract and their rather narrow scope (Bix , 392), building local theories is only one possible solution. The other possibility is to expand the scope of the theories, so they can ground their universal claims.…”

“…Before starting to provide an answer, I should note that the problem, in my view, cannot be solved in abstract or conceptual terms, without due consideration for the actual historical practices one is theorizing. The idea that universal theories of a doctrinal area of law should attempt to explain conceptually possible versions of the doctrinal area (Bix , 392) is wrongheaded. A universal theory of contract law that concerned itself with conceptually possible practices that only exist in the theorists’ mind would certainly be absurd—as well as uninteresting.…”

“…But this perspective allows us to see that our pretheoretical understanding, in the sense that all these different systems have contract law , should not be abandoned. In this sense, we should keep in mind that both at the level of the ordinary discourse of international legal practitioners and in the context of comparative contract scholarship, as Bix (, 398), reminds us, we are able to talk productively about contract law , without talking at cross purposes or getting lost in translation. Thus, for example, contract law, along with other areas of law, has been the focus of a project devoted to finding a common core , which attempts to become a “tool for unearthing deeper analogies hidden by formal differences” (Bussani and Mattei , 340).…”

“…He is also right about the mismatch between the usually (implicit) universal scope of theories and their parochial focus on one or a small number of related national jurisdictions. Finally, I entirely agree with Professor Bix’s worries about the Dworkinian identification between the logical space occupied by adjudication and legal theory (Bix , 394), as well as with his concerns about the theoretical inflation that characterizes contemporary contract theory (Bix , 396).…”