The prospects for pluralism in contract theory

Abstract

AbstractThis paper explores the promise of pluralism in the realm of contract law. I begin by identifying and rejecting conceptual strategies adopted by monistic and dualistic approaches. Turning towards pluralism, I evaluate three versions in contemporary literature: pluralism across contracting spheres and types, pluralism through consensus and convergence, and pluralism through localised values-balancing and practical reasoning. I suggest embracing some pluralism about contract pluralism, by using these models to construct a framework of ‘meta-pluralism’, where at the macro-level, we are concerned with plural spheres of contracting activity; at the meso-level, a variety of trans-substantive interpretive concepts that receive some measure of juristic consensus; and at the micro-level, practical reasoning through particularistic analysis of case-specific considerations. I illustrate the meta-pluralistic framework through a case study on the varieties of specific performance, and explain how the proposed pluralistic framework enriches our understanding of the nature of contract.