This article challenges the use of monist conceptions of contracting that are dominated by such ‘super’ values as the wills, consent or promises of the parties, or the efficiency of their transactions. It argues instead for greater judicial resort to plural theories of contracting by which judges can identify, rank and apply a plurality of legal, cultural, moral and economic values in reaching informed decisions. It concludes that judicial pluralism can lead to a more richly textured and collaborative approach to contracting than under legal monism.
Devised to suit Nineteenth Century values, monist conceptions subject all contract rights to a single ‘super’ or prime value, such as the liberty to contract. Judges express that ‘super’ value through such concepts as the wills of the contracting parties, or through the efficiency of those contracts. The result is a unitary conception of contracting in which judges hold that one value prevails over all others.
This article maintains that these monist conceptions of contracting fail to meet the demands of an increasingly complex legal order. It proposes a working theory of judicial pluralism by which judges can engage a range of values, beyond a single ‘super’ value like liberty to or equality in contracting. It maintains that some courts implicitly resort to such judicial pluralism. It argues further that courts are often best able to identify the plural values that are materially associated with the issues. They are often equipped to rank those plural values in relation to one another; and they have the capacity to apply those values prudentially through a process of deliberative reason. It concludes that further development of judicial pluralism can enrich contract theory in a manner that legal monism has failed to accomplish.
A plural account of contracting must necessary accept that theories of contract are often incongruous, contradictory and sometimes illusive in their application. If a plural approach towards contracting is to take account of such inconsistencies, it ought not to exascerbate them. If pluralism it is to work, it needs to delineate the scope of its own application by identifying competing normative values, the reasons for rejecting some, the means of reconciling others and the virtue of reformulating yet others. What ultimately will commend pluralism is neither its perfection nor its ‘perfectability’, but its capacity to respond instrumentally to disquiet over the deficiencies inhering within monism.
Contracts | Law
Date of this Version
Leon Trakman, "Pluralism in Contract Law" (August 2009). University of New South Wales Faculty of Law Research Series 2009. Working Paper 28.