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Catherine Mitchell, Vanishing Contract Law: Common Law in the Age of Contracts, Cambridge, Cambridge University Press, 2022, 259 pp, hb, £85.00

Document Cited authorities 12 Cited in Related
Published date01 September 2023
AuthorJordan English
Date01 September 2023
DOIhttp://doi.org/10.1111/1468-2230.12808
Reviews
reasoning to answer the question.It is, however, a core contention of the book
that the common law is ‘rich with binding legal rules’ which are almost always
unambiguous and directly applicable,and that this fact explains why similarity-
based analogical reasoning is supposedly so scarce, because ‘a court will never
reason by analogy if the case before it is governed by a binding legal rule’ (8).
But, as we have just seen, Eisenberg acknowledges that much of the time the
question at issue is whether the case before the court is governed by a binding
legal rule. Eisenberg says surprisingly little about how the courts go about an-
swering this question, leaving an unresolved tension at the heart of the book
between the claim on the one hand that analogical reasoning is unnecessary
because the courts are so often bound by ‘almost invariably’ clear rules (29),
and the claim on the other hand that courts frequently have to grapple with
whether a given set of facts falls within the ambit of a binding rule in the rst
place.
What justies these binding rules? I skirted over the reference to social
propositions earlier but their role for Eisenberg is all-important, for ‘all com-
mon law rules must ultimately be justied by propositions of social morality,
social policy, and experience’ (31). Those moral standards that obtain indepen-
dent of their endorsement by a given group (standards of ‘critical morality’)
are ‘not employed in legal reasoning’ (43). This is because ‘social morality is
objective and observable’ in such a way as to make ‘legal reasoning replicable
by the profession in a way that a judge’s personal morality and critical morality
do not’ (44).Indeed, Eisenberg claims that this is borne out ‘almost entirely or
in signicant part’ by tor t law, the rules of which are ‘largely based on social
morality’ (ibid). The only evidence oered in favour of this view is a passage of
a textbook, Hor nbook on Torts, which says that torts are ‘traditionally associated
with wrongdoing in some moral sense’, particularly in the area of fault where
the law attempts to recognise ‘personal responsibility and accountability’ (ibid).
Again, we are meant to take their word for it,never mind that the passage does
not specify social morality or the mountain of literature on the relationship
between private law and critical morality.
Ultimately, Legal Reasoning is torn between two readerships: the uninitiated
law student and general reader on the one hand, and established scholars and
practitioners on the other. It is admirably concise and accessible,with footnotes
aimed at explaining insular concepts and terminology.At the same time, how-
ever, it attempts to settle a score of deeply controversial theoretical questions.
The brevity with which it does so, and the short-change it gives to opposing
views – when they are acknowledged – will frustrate the more advanced reader
whilst at the same time misleading the student into thinking that the questions
presented require little by way of substantive reasoning to answer.
Joshua Pike∗
∗London School of Economics and Political Science.
© 2023 The Author.The Modern LawReview © 2023 The Moder n LawReview Limited.
(2023) 86(5) MLR 1294–1306 1297

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