A Theory of Contract Law: Empirical Insights and Moral Psychology

Peter A. Alces



Scholars have offered positive, normative, and interpretive theories of contract. These theories have necessarily proceeded from deontic and consequentialist premises. This book argues that there can be no unified and comprehensive interpretive theory of contract, and it is not even possible to stack the extant theories to make much theoretical sense of the law. The book asserts that theoretical constructions have generally proceeded from theory and tapped doctrine as appropriate to establish their premises, but have not been sufficiently considerate of doctrine. A more careful and candid approach to the contours of doctrine reveals that it cannot support convincing positive, normative, or interpretive accounts. The book explains that the disjunction between doctrine and what theory would have doctrine be is manifest when the fundamental constituents of doctrine, the cases that form the contract canon, are exposed to the limited light that theory would cast. The book formulates the canon and then demonstrates the failure of extant theory, concluding that an appreciation of doctrine in terms of the contributions of moral psychology explains the failure of theories proceeding from deontic or consequentialist premises. Once we take account of the human agent and the human agent’s engagement with the doctrine, we are in a better position to appreciate how the normative structure of doctrine reflects the empirical morality moral psychology would confirm.