Reflexivity and Welfarism in the Modern Law of Contract

Abstract

Over the past decade I have argued repeatedly that, in the terms of the modem philosophy of science, the classical law of contract is now so unproductive a research programme that it should be regarded as falsified. ' Falsification, however, never follows only from the degeneration of an unproductive programme. It quite rightly awaits the emergence of a superior, rival programme which makes it possible for those working in the field to abandon the unproductive programme by moving to that rival. The classical law of contract has been such an astounding success in the past that we should not be surprised that there remain, long after notice of its death has appeared,2 those who just obstinately refuse to accept their sad loss, or even hope to breathe new life into the deceased. I will take it that the evidence of the degeneration of the classical law is now so overwhelming that there is no point arguing about it. For those who are prepared to, and are capable of, moving to a new, rival law of contract, the issue now is one not of defence of the classical law as such but of weighing the attractiveness of any rival. Though resolutely or even militantly formal in method, the current restitutionary redrafting of the law of obligations is understood by some of its proponents to be such a rival.3 I do not think it is much of one, but having had my latest say on this only recently,4 and in the confident expectation that the proponents of restitution will themselves have something to say about the book under review, I will focus on the 'interdisciplinary' or 'socio-legal' character of the rival to the classical law which Hugh Collins offers in Regulating Contracts.'