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

Abstract

There is a growing literature offering (competing) theories of particular doctrinal areas – theories of contract law, tort law, property law, criminal law, restitution law, etc. As theories of doctrinal areas – and, not limited in title or description to the doctrinal area of a particular jurisdiction or time period – they purport to describe, explain, or (and) 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 paper, I explore what may justify these sorts of theories, and what problems they need to overcome. I 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. Part I examines what is meant by general and universal theories. Part II considers the practice of rational reconstruction, a practice that is both often at the core of what theorists of doctrinal areas do, and central to how they justify their project. Part III reflects more generally on the factors that might cause caution about the project of general theory. Part IV comes from the other direction, looking at the considerations that motivate or ground general theories. And Part V adds a few comments on prescriptive theories.