Legal Realism and the Social Contract: Fuller's Public Jurisprudence of Form, Private Jurisprudence of Substance

Abstract

This Article is a contribution to the theoretical and historical literature about Lon Fuller, a figure who is of interest both for his own sake and because of his "iconic" role in the history of legal thought over the last fifty years. At the same time, the Article aspires to make a broader argument about the relevance of legal realism to the social contract tradition in political theory. My argument begins with the discovery of an apparent conflict between the "public" and the "private" jurisprudence of contract in Fuller's work. Describing contracts in private law, Fuller gave an account that owed a great deal to legal realism, particularly in the way that it attacked formalistic criteria for enforceability. Where the classicists stressed form and consideration as theoretical a prioris, Fuller subjected those ideas to functional scrutiny, decried the undervaluation of the reliance principle, and found reasons for enforceability in relative and contingent community norms. Fuller accepts that Section 90 of the Second Restatement of Contracts may require the judge to step in post hoc and create enforceable bargains where necessary "to prevent injustice"; he portrays the formal requirements of contract as being in dialectical, productive tension with their functional goals; and he denies that the rules of contract law are somehow immanent within the very definition of a contract.

Keywords: Lon Fuller, political theory, legal realism, social contract