Contract Law and Legal Theory
| DOI | 10.1177/096466390000900304 |
| Date | 01 September 2000 |
| Published date | 01 September 2000 |
| Subject Matter | Articles |
DIALOGUE AND DEBATE
CONTRACT LAW AND LEGAL
THEORY
We are very pleased to introduce this latest contribution to our Dialogue and
Debate section with an article by Gunther Teubner, to which there are
responses by Oliver Gerstenberg, Ian Macneil and David Campbell. The
resulting debate contributes to Social & Legal Studies’ ‘mission statement’, to
‘create an intellectual space where diverse traditions and critical approaches
within legal study meet’. Bringing together different perspectives, it covers
issues in contract law and legal theory, in the context of the process of ‘global-
ization’ in the modern world.
Teubner introduces his article by locating contract in the development of
a world economy where the cash nexus, mediated by law, predominates.
Neoliberal capitalism has produced what Hugh Collins calls the ‘sanctimony
of contract’, a situation in which regulatory regimes of welfarism are being
dismantled, but where private forms of activity are unable to produce the
required public goods. Yet, by default, more social activities are being taken
over by private governance regimes. In this ‘post-catastrophic situation’,
which is also the theoretical moment of the question ‘after deconstruction,
what?’, Teubner asks whether it is possible to think of a reconstructive
project of private law that could redesign institutions of governance using
contractual forms against their traditional functions. He suggests a relational
reconstruction of contract in the ‘cool and impersonal’ terms of the recog-
nition of intertextuality and a need for what he calls discourse rights. This is
an anti-individualistic and anti-economic argument for the autonomy of
private law, to make such law the space for a compatibility between different
discursive projects. Such a new site for a constitutional law for global regimes
of private governance would require a transformation of the classical model
of rights in its main elements, but would underpin political notions of democ-
racy and citizenship.
All this is carried out with Teubner’s typical wit, flair and imagination;
from this point, the debate begins. For Gerstenberg, there are internal prob-
lems with the autopoietic approach to what Teubner calls ‘polycontextural-
SOCIAL &LEGAL STUDIES 0964 6639 (200009) 9:3 Copyright © 2000
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 9(3), 397–398; 013779
04 Norrie (jl/d) 3/8/00 1:47 pm Page 397
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