The Anti-Theoretical Nature of Civil Law Contract Scholarship and the Need for an Economic Theory
65 Pages Posted: 29 May 2000
Abstract
The absence of theories developed for Roman law and the absence of grand theories in Civil contract law scholarship were outcomes of a particularistic approach to the problems created by the deficiencies of markets and driven by the need for a construction of a legal framework conducive to economic progress. The generation of efficient results by Civil law through the selection of efficient rules and standards was completed over the course of several centuries and stabilized after the great codifications. Common law had for centuries attempted to develop a similar construct that would be stable enough to facilitate economic relations. The borrowing of ideas and solutions from Civil law was the easy way out. Despite the numerous legal transplants, Common law fought hard to preserve a false independence and a parallel dilapidated coherence by building unified, conclusive, but dogmatic theories. The mimicking of Civil law has led to some efficient solutions, but with many islands of inefficiency trapped in the sea of rigid theories (bargain theory, privity, etc.). On the other hand, Civil law scholarship and practice has found it increasingly difficult to respond to the fast-changing economic circumstances. For the first time in history, economic relations have become so complicated that it is impossible for a judge endowed only with common sense to solve problems created by the dysfunctions of markets. Economic expertise is not only helpful, but required. A responsive economic theory of contract law is almost imperative if Civil law is to continue playing the role that it has successfully performed for centuries: providing the legal framework that helps the economy function.
Note: Previously titled "The Absence of Theory: Common vs. Civil Contract Law"
JEL Classification: K12
Suggested Citation: Suggested Citation
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