Against Parochialism in Contract Theory: A Response to Brian Bix

• Date: 01 June 2019
• Author: Felipe Jiménez
• Published date: 01 June 2019
• DOI: http://doi.org/10.1111/raju.12237

© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

Ratio Juris. Vol. 32 No. 2 June 2019 (233–250)

Against Parochialism in Contract

Theory: A Response to Brian Bix

FELIPE JIMÉNEZ

1. Introduction

There is plenty to agree with in Brian Bix’s recent article problematizing u niversal

and general theories of contract law (Bix 2017).1 Bix is certainly right to note that

most contract theorists— and private law theorists, for that matter—are typically

silent about the types of clai ms they make and the scope and ambitions of t heir the-

ories.2 He is also right about the m ismatch between the usually (implicit) universal

scope of theories and their parochial focu s on one or a small number of related

national jurisdictions.3 Fi nally, I entirely agree with Professor Bix’s worries about the

Dworkinian identification between the logical space occupied by adjudication and

legal theory (Bix 2017, 394),4 as well as with his concern s about the theoretical

inflation that ch aracterizes contemporary contract theory (Bix 2017, 396).

Despite these agreements, in th is partial response I wish to suggest that Bix’s

concerns about universal theories of cont ract law should not lead us towards a pref-

erence for localized, parochial theories of contract law.5 What I wish to suggest,

more precisely, is that Bix’s concerns should not lead to parochialism—i.e., the idea

that local or parochia l theories of contract law are always preferable to universal

theories. On the contrar y, as this paper arg ues, there are good reasons to think t hat

a universal approach to contract theory m ight be warranted. For this pur pose,

Section 2 explain s what I take to be the right subject matter to be t heorized by uni-

versal contract theory, and in what sense th is approach is—and is not—“universal,”

as well as the kind of argument that should be put forward to defend such an

approach. Sections 3 to 6 contain t he substance of the argu ment in favor of this

transnational a nd universal approach towards contract theory. Finally, Section 7

1 Which refi nes and extends prior arguments m ade in Bix 2007 and 2013, 147–62.

2 A notable exception is Smith 200 4.

3 Others have already notice d the worrying par ochiali sm of most contemporary Anglo -

American contract t heory. See Murphy 2014, 152.

4 For Dworkin, legal theor y is the “silent prologue” to adjudicative decisions. S ee Dworkin

1986, 90 .

5 Thus, I leave aside in this res ponse Bix’s arguments against genera l theories of contract law.

Notes • Discussions • Book Reviews

Felipe Jiménez

234

Ratio Juris, Vol. 32, No. 2© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

concludes and suggests that, at least in one respect, a un iversal approach can even be

preferable over more local approaches.

2. “Universal” Contrac t Theory

Universal contract theory should theor ize institutional practices of contract law. By an

institutional practice, I understand “a sort of technical term meaning any form of

activity specified by a system of r ules which defines offices, roles, moves, penalties,

defenses, and so on, and which gives the activity its structure” (Rawls 1955, 3 n. 1).

The focus should thus be on the for ms of activities specified by the systems of con-

tract law and the institutional definitions of rights, duties, and remedies that they

generate. An institutional practice, moreover, in the way I am using the term, is a

system of rules, i.e., authoritative legal norms.6 Inst itutional practices of contract law,

then, are systems of legal norms wh ich regulate exchange by defi ning, inter alia,

what constitutes an enforceable contract, as well as how contracts should be inter-

preted, performed, and enforced.7

Of course, the institution of contract law can also do other thi ngs. In addition it

might, as it in fact does in certain jurisdictions, enforce unilateral u ndertakings

which do not amount to “exchange.”8 It might al so give rise to other legal in stitu-

tions—thi nk, for instance, about partnership agreements, or contracts of marriage.

From jurisdiction to juri sdiction, contract law might also encompass larger or

smaller areas of human i nteraction. But I am not too concerned, in this paper, with

demarcating or policing contract law’s boundaries. My concern, rather, is whether

contract law, understood as a system of legal norms that regulates the exchange of

goods and services, can be usefully and legitimately theorized from a “universal”

perspective.

As such a system, contract law provides individuals with r ights-creating powers

(Hart 1994, 41). It is a set of power-conferring rules (ibid., 96; Raz 1999, 104–6) that

enables individuals to create and alter private rights and duties (Barnett 2010, xix).

When a contract is validly executed (and it is a crucial role of contract law that it

determines the conditions of such validity), correlative primary rights and duties

arise. At the same time, contract law also imposes secondary duties in cases of

breach of those primar y duties. Its rules are thus also duty-imposing.9

From this perspective, what universal contract theory should theorize are the

“salient features of a modern municipal legal system” (Hart 1994, 100, 240) of con-

tract law. Thus, the subject of analysis should not be a partic ular jurisdiction but the

practice of contract law, the characterization of which is given by the core featu res

6 Because of this br oad use of the term rules as legal norms, it should be u nderstood that the

term as I use it does not exclude, as some d iscussions i n jurisprudence could sug gest, stan-

dards or formally en acted legal principles.

7 For this charact erization, I reviewed se veral comparative contract law and Amer ican con-

tract law textbooks, al l of which showed a remarkable degre e of consistency in t he topics

covered. See, just as examples, Bar nett 2010; Beale, Bishop, and Fur mston 2007; Beatson 2002;

Bix 2013; Farnsworth et al. 2008; Graziano 20 09; Levasseur 2008; and Zweigert and Kötz 1998,

323–536.

8 See, e.g., Restatement (Second) of Contracts par. 90 (1979).

9 Because of this, K lass (2008) is right when he labels t he rules of contract law as co mpound

rules.