Contracts are everywhere. In this series we encounter them doing the work traditionally associated with governments (Flanagan), family (Kintominas), mental health care (Carter), consent during sex (Verdee), and in visual art conversations (Wright). Each of these contexts individually challenges the idea that a contract is or should be understood exclusively as an economic exchange between two self-interested economic actors. And yet contract law theory (not just economic law theory) is heavily invested in this view of contract. This is regrettable because it risks theory being seen as irrelevant to contract law’s purpose and functions. Gunther Teubner offers us a credible path out of this problem by theorising contract law as something other than the oracle and facilitator of market activity.
For Teubner, a contract is at least three projects in different social worlds: a productive agreement, an economic transaction, and a legal promise.[1] The productive project exists in many social worlds: distribution, production, services, engineering, science, medicine, journalism, sports, tourism, education, art. The economic project exists in the economic world as an entrepreneurial and profit seeking activity. And in the legal world it is a set of rules which produces obligations and time binding promises. These three independent projects are each participating in a different social dynamic, precariously and provisionally related to each other. That relationship means that contract is a fourth thing – it is the discourse (conflictual and sometimes even violent) between these different rationalities. Contract, when understood as three different projects and their ‘intertextuality’ is the social dynamic that transforms expectations into obligations, and projections into promises.
That a contract is united by the relations between the discourses is not to be misunderstood to mean that Teubner belongs to the relational contract theory tradition/school – nothing could be further from his mind. Intertextuality is relational only in the sense that it represents a relationship between the three different discourses; it is not relational in the ways we tend to think of contract as cooperation, adaptation and good faith. This view of contract as a ‘warm, human, cooperative interpersonal relation that overcomes the cold economic instrumentalism with a communitarian orientation’, is out of step with the realities of ‘conflictual relations between colliding discourses, language games, systems, textualities, projects, trajectories.’[2]
Similarly, Teubner rejects the individual nature of contract and the freedom to contract which has been the dominant script of classical and neo-classical contract theory. As such he says the will of the individual is the subject and not the master of the contractual relation. In this theory the subject is de-centered. Individual will is all at once the rational economic actor maximizing her utilities, the rule-bound legal subject fulfilling her contractual obligations, and the producer/user of valuable objects. Crucially, ‘none of these fractured contractual personae expresses the desires of the full human subject.’[3]
The freedom to contract thereby acquires a new meaning. It now means a freedom between the different discourses of contract which in turn signifies a more important shift, that of moving contract law (and private law in general) towards a wider project – the extension of constitutional rights into the context of private governance. But what does this look like?
First, as I have already said, this is a recognition of freedom for different discourses. Freedom of art, education, research, media, just to name the most obvious. Or to put it another way, freedom to use different meanings and knowledge such as emotion. Second, it means that rights offer protection not just from the state but from all totalizing systems such as technology, science and the market. This in turn is a protection from the exercise of more subtle and seductive forms of power such as the profit motive, monetary incentives, sponsorships, and private funding, just to name a few. This is an invitation for us to look beyond institutions, representation, identity, merit and so forth, to all of those ways we have traditionally thought were enough to break the system’s exercise of power and their reproduction of inequalities.
The normative goal of constitutionalizing the private law of contract does not mean simply infusing the law with ideas of rights and justice which some our constitutions embody. find in our constitution – important as this is. Rather, the goal is to make private law itself a type of constitutional law. If private law is creating a large body of law that governs and regulates life, then it requires a constitution to protect ‘the many autonomies of civil society.’ [4] This is an emerging project for private law for those of us who want to see an end to the disingenuous idea that contract law is value-free and a mere bystander to the ravages of market capitalism.
The implications of freeing the various discourses of contract means the end of the domination of the economic discourse which exists in contract law theory. While it is true that legal doctrine for the past 200 years has used commercial contracting as the frame, contract is and should not be seen exclusively as an economic exchange as this distorts social relations. Hugh Collins has also argued this, claiming that overlaying social relationships with contract imposes a bilateralism on them, and enforces specific kinds of power. [5]
Freeing contract from economics, however, does not mean that we should chain it to politics. Teubner rejects as vague slogans calls to ‘make private life public’ or claims that ‘everything is politics’. He says that while it is true that for both liberalism and Marxism private law is the discourse of the economy, and that the only disagreement between them is whether it should reflect economic efficiency or government policy (that is, principles of economic autonomy or political intervention), they are both wrong. What is needed is a ‘non-reductive’ private law that recognizes itself in many other ‘social spaces’ where norms are created. This is a radical proposition that extends law beyond the central authority of the state and perhaps back to the community – as per common law theory – and includes its many and diverse discourses (as per critical theory). He says,
The task of private law in its broader sense is to constitutionalize spaces of social autonomy: not only economic forms of action, but in particular non-economic forms of contracting and other modes of consensual action, idiosyncratic private ordering, standardization, normalization, codes of practice, formal organisations and loosely organized networks in different contextures of civil society.[6]
Gunther Teubner offers a way to theorize contract that has potential to liberate contract law from the shackles of economic discourse and the totalizing power of the market, and to separate it from neoliberal politics. These are worthy goals, which would make contract law fit for participating in projects that introduce ideas of responsibility, justice and fairness to people, communities the environment.
[1] Gunther Teubner is best known for his book Law as Autopoietic System. He has written significantly about contract law which he describes as ‘the most fundamental institution in private law’.
[2] Gunther Teubner, Contracting Worlds: The Many Autonomies of Private Law’ (2000) 9 Soc & Legal Stud 405
[3] Ibid., 406
[4] Ibid., 414
[5] Hugh Collins, ‘The Sanctimony of Contracts’ in R, Rawlings (ed.), Law, Society, Economics (Oxford: Oxford University Press, 1997) 63-89
[6] Gunther Teubner and Diana Gobel, Critical Theory and Legal Autopoiesis: The Case for Societal Constitutionalism (Manchester University Press, 2019) 132
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