Contracting Worlds: The Many Autonomies of Private Law
| DOI | 10.1177/096466390000900305 |
| Date | 01 September 2000 |
| Published date | 01 September 2000 |
| Author | Gunther Teubner |
| Subject Matter | Articles |
CONTRACTING WORLDS:
THE MANY AUTONOMIES OF
PRIVATE LAW
GUNTHER TEUBNER
University of Frankfurt, Germany
ILBUON GOVERNO REVISITED
PRIVATE LAW theory should begin with a question where other
theories end with a result. The question is: After deconstruction? Criti-
cal legal studies and legal deconstructivism have relentlessly and suc-
cessfully attacked la distinction directrice of private law, the perennial debate
between a formalist and substantive orientation, between individualist and
collectivist concepts, between neoliberal and state-interventionist policies
(Derrida, 1990a; Kennedy, 1997; Schlag, 1991, 1994; Unger, 1996). Simul-
taneously in the real world, the foundations of modern private law have been
shaken by the brutal shock waves of globalization and privatization (see the
various dimensions of law and globalization in the contributions to Teubner,
1997a; jurisprudential aspects in Twining, 1996; on law and privatization
Graham and Prosser, 1991; Prosser, 1997). Both the neoliberal and the state-
interventionist project of private law have become victims of the globaliz-
ation catastrophe. Regulatory regimes of the welfare state are being
dismantled, the world markets are, of course, not in a position to produce
public goods, but at the same time more and more social activities are taken
over by private governance regimes. In such a post-catastrophic situation, is
a reconstructive project of private law thinkable? And in what direction could
institutional imagination develop?
Perhaps we should take advice from arguably the greatest expert in the
reconstruction of private law, Jacques Derrida, who comes up with the
following epigrammatic formula:
The obligation or the contract does not exist between the person who gives and
the person to whom something is given, rather it exists between two texts
(between two ‘products’ or two ‘productions’). (Derrida, 1987: 135, my trans-
lation)
SOCIAL &LEGAL STUDIES 0964 6639 (200009) 9:3 Copyright © 2000
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 9(3), 399–417; 013778
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Are these ipsissima verba a new version of relational contracting (Eisenberg,
1994; Gordon, 1987; Macneil, 1980)? I shall argue that contract law needs to
be reconstructed as relational, but not in the usual communitarian sense of
the word as a nice and warm cooperative relation between human beings,
rather as a cool and impersonal relation of intertextuality. I shall make a
strictly anti-individualistic, strictly anti-economic argument for the many
autonomies of private law in which contract appears no longer merely as an
economic exchange relation between persons but as a space of compatibility
between different discursive projects, different contracting worlds. And I
shall make a normative argument that in these contracting worlds, emerging
‘discourse rights’ that are still incipient and inchoate need to be firmly insti-
tutionalized. More generally, I want to put these arguments in the broader
context of contemporary private law which needs to transform itself into a
constitutional law for global regimes of private governance.
For such an intertextual or interdiscursive understanding of contract, many
of the predominant theories of private law are not helpful. By defining con-
tract as the legal formalization of an economic transaction they exclude a
priori more significant political and social dimensions of contracting. As
Hugh Collins has argued, the sanctimony of contract in modern legal doc-
trine means nothing but ‘the reduction of agreements and exchanges to the
limited form of monetary transaction; the sanctity is attached to money, in a
word: sanctimony’ (Collins, 1997: 80). This is of course true for neoliberal
concepts that subsume any social elements of contracting under the criterion
of efficiency and transaction cost reduction (e.g. Epstein, 1995; Mestmäcker,
1994; Posner, 1986), but it is also true for state-interventionist projects (see
e.g. the contributions in Wilhelmsson, 1993). While urging an external politi-
cal regulation of contracts they accept implicitly the economic reduction of
contracting itself to a sheer market transaction. And it is true for traditional
legal doctrine which for the last 200 years has used the commercial contract
as the master plan for any contractual activity and systematically neglected
alternative traditions of contractual thinking. Indeed, one needs to go further
back in the history of legal thinking if one wants to widen this somewhat uni-
dimensional view of contract and private law.
I suggest to go back to the year 1338 when in a time of political turmoil
and confusion, Ambrogio Lorenzetti, a famous late-mediaeval painter from
Siena, Italy, composed his masterpiece Il Buon Governo as part of a cycle of
four paintings Allegorie ed effetti del buono e cattivo governo in città ed in
campagna. Lorenzetti symbolized to his contemporaries the perversions of
political power but also possible paths to a good political government of
society.1In this painting a vision of private law and contracting emerges that
is far away from today’s reductionist economic concept, which instead sees
contracting as a rich and multidimensional activity as an integral part of Il
Buon Governo.
At first sight one sees only the usual natural law hierarchy of the People
under the King’s Power and the Law which in turn are subsumed under
God’s Wisdom (Sapientia). But let me draw your attention to two small but
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