The Contract as Social Artifact

Abstract

This article outlines a distinctive, albeit not entirely unprecedented, research agenda for the sociolegal study of contracts. In the past, law and society scholars have tended to examine contracts either through the intellectual history of contract doctrine “on the books” or through the empirical study of how real-world exchange relations are governed “in action.” Although both of these traditions have contributed greatly to our understanding of contract law, neither has devoted much attention to the most distinctive concrete product of contractual transactions—contract documents themselves. Without denying the value of studying either contract doctrine or relational governance, this article argues that contract documents are independently interesting social artifacts and that they should be studied as such. As social artifacts, contracts possess both technical and symbolic properties, and the sociolegal study of contract-as-artifact can profitably apply prevailing social scientific theories of technology and symbolism to understand both: (1) the microdynamics of why and how transacting parties craft individual contract devices, and (2) the macrodynamics of why and how larger social systems generate and sustain distinctive contract regimes. Seen in this light, the microdynamics of contract implicate “technical” theories of transaction cost engineering and private lawmaking, and “symbolic” theories of ceremony and gesture. In a parallel fashion, the macrodynamics of contract implicate “technical” theories of innovation diffusion, path dependence, and technology cycles, and “symbolic” theories of ideology, legitimacy, and communication. Together, these micro and macro explorations suggest that contract artifacts may best be understood as scripts and signals—collections of symbols designed to yield technically efficacious practical action when interpreted by culture-bearing social actors within the context of preexisting vocabularies and conventions.