Why Contracts Scholars Should Read Legal Philosophy: Positivism, Formalism, and the Specification of Rules in Contract Law

43 Pages Posted: 17 Nov 2007 Last revised: 20 May 2008

See all articles by Curtis Bridgeman

Curtis Bridgeman

Willamette University College of Law

Abstract

Formalism - the view that rules are legally binding because of their status as rules, rather than because of any substantive justification for the rules - is a hot topic in contract scholarship. Most recent scholarship has focused on whether a more formal or less formal body of contract law would maximize welfare. This paper approaches some questions surrounding formalism from the point of view of legal philosophy. It considers legal positivism, the view that law is a social artifact, and in particular it considers recent work in the positivist tradition called the planning theory of law. This theory sees law as a set of plans designed to solve certain coordination problems in society. In the beginning, these plans are typically partial, and then are gradually made more specific over time, hopefully by those best qualified to do so. This paper questions whether modern informal contract law is capable of being law notwithstanding its reliance on vague, controversial normative terminology, given that law by its nature is supposed to settle disputes about such norms. It concludes that such vague rules can qualify as law, but that their effectiveness will depend on the ability of such terms to be specified usefully. When those terms can be specified, the formal vs. informal debate becomes a debate about whom we best trust to fill in these partial plans. Unfortunately, much modern contract law is designed to resist specification except on a case-by-case basis, and is for all practical purposes ineffective at providing the sort of practical guidance we expect from law. When law is viewed as a set of plans designed to solve certain social problems, it will be seen that in many cases the general welfare would be better served by a return to the formalism of classical contract law.

Suggested Citation

Bridgeman, Curtis, Why Contracts Scholars Should Read Legal Philosophy: Positivism, Formalism, and the Specification of Rules in Contract Law. Cardozo Law Review, Forthcoming, FSU College of Law, Public Law Research Paper No. 296, Available at SSRN: https://ssrn.com/abstract=1030634

Curtis Bridgeman (Contact Author)

Willamette University College of Law ( email )

Salem, OR 97301
United States
503-370-6402 (Phone)

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