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

• Date: 01 December 2017
• Published date: 01 December 2017
• DOI: http://doi.org/10.1111/raju.12179
• Author: Brian H. Bix

The Promise and Problems

of Universal, General Theories

of Contract Law

BRIAN H. BIX*

Abstract. There are a growing number of general theories of contract law and of

other doctrinal areas. These theories are vastly ambitious in their aims. This article

explores the nature of these claims, and the motivations for offering such theories,

while considering the challenges to success. It is in the nature of theorizing to seek

general categories, including doctrinal categories, and to try to discover insights that

hold across those categories. However, differences both within a doctrinal area and

across legal systems undermine the case for universal and general theories. Also,

unjustifiably general theories may distract us from developing properly contextual

legal rules, and might even have the unintended effect of legitimating unjust rules.

1. Introduction

There is a growing literature offering (competing) theories of particular doctrinal

areas—theories of contract law, tort law, property law, criminal law, restitution

law, and so on (Fried 2015; Gold 2009; Moore 1997; Perry 1992; Sherwin 2001;

Underkuffler 2003; Zipursky 2003). As theories of doctrinal areas—not limited in

title or description to the doctrinal area of a particular jurisdiction or time period—

they purport to describe, explain, and/or justify all past, present, and possible

versions of that doctrinal area. The audacious ambition of such claims has done

little to slow the supply of these theories, though it may explain why so few among

these projects pause to consider explicitly their methodology and grounds.

In this article, I intend to explore what may justify these sorts of theories, and

what problems they need to overcome. I will use examples primarily from contract

law, as it is the area I know best, but I suspect that the promise and problems of

general theories of other areas of law will be similar. Section 2 examines what is

meant by general and universal theories. Section 3 considers the practice of rational

reconstruction, a practice that is often at the core of what theorists of doctrinal

* Frederick W. ThomasProfessor of Law and Philosophy, University of Minnesota. This article

was presented at theNorth American Workshop in Private Law Theoryat Fordham University.

I am grateful for the commentsand suggestions of those attending, and also for the comments

and suggestionsof anonymous reviewersfor this journal.

V

C2017 The Authors. Ratio Juris V

C2017 John Wiley & Sons Ltd.

Ratio Juris. Vol. 30 No. 4 December 2017 (391–402)