9 - How Many Contract Laws?

Summary

There is an abundance of books and articles offering the (or “a”) theory of contract law. Theories of contract law commonly discuss a single principle (e.g., promise, consent, reliance, or efficiency) that is said to explain all of contract law, both for this country and for other countries (and perhaps for all time). Rather than add one more general theory to the pile, this book has offered a narrower and more cautious view of contract law, focusing more on the rules of a single time and place, and denying that any single principle can explain the whole field. In the course of the discussion, the text also suggests that there may be more at stake than abstract knowledge claims: that the (often indirect and almost certainly unintended) effect of general theories is to distract attention from the particular difficulties and occasional injustice of types of transactions that depart from the general theory's paradigm.

THE HISTORY OF GENERAL THEORY

As discussed in Chapter 2, the idea of contract law as a special category is relatively recent. The idea of a general theory of contract law (or any other area of law) might well derive from the view that law can and should be viewed systematically, or even “scientifically.” One finds this approach in England only in the late eighteenth and early nineteenth century, with the earliest legal treatises (and John Austin's development of legal positivist theories of law). The civil law countries had a longer and more established history of treatise writing and other systematic works about areas of law (from which the English treatise writers apparently borrowed liberally), and there is also the natural law tradition, which supported the idea that there might be general principles that did or should underlie the chaos of legal decisions.