REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1981.tb01633.x |
| Published date | 01 May 1981 |
| Date | 01 May 1981 |
REVIEWS
THE
FRONTIERSMEN
THE
NEW
SOCIAL
CONTRACT.
By
IAN
R.
MCNEIL.
[Yale
University
Press.
1980.
xiii
and
164
pp.,
incl.
bibl.,
notes
and
index.
Price
not
stated.]
TRAGIC
CHOICES.
By GUIDO
CALABRESI
and
PHILLIP
BOBBITT.
[W.
W.
Norton
&
Co.
1978.
252
pp.,
incl.
bibl.
notes
and index.
€2.60
(paper
covers).]
AT first sight these books appear to have little in common. The first book
analyses the roots of contract and the normative aspects of contracts, and
attempts to take ideas developed by that analysis into a number of modern
problem areas. The second book seeks to know “how the world decides that
suffering shall come to some people and not others.” In this review
I
am less
interested
in
rebutting the view that the books deal with different subject-
matter and more interested in the books as books-as
a
particular kind
of
intellectual enterprise-and the major concern of this article is to suggest that
they are, in that sense, remarkably similar in definition and aim.
I
shall then
suggest that the common definition and aim shared by the books is one of
interest to legal scholars generally.
The analysis can start with
a
catalogue of some similarities between the
books, in perhaps descending order
of
triviality. They are both short;
117
pages
of
text for McNeil,
182
for Calabresi and Bobbitt. They both have certain and
pervasive impenetrabilities of style. They both started their life as prestigious
lecture series.2 They are both written by professors of law. They are both
written by Faculty members of prestigious American Law
school^.^
They are
both written by authors of the highest academic reknown. They are both
written by authors whose major intellectual work has consisted of recasting,
in
a
stimulating and innovative way, the concerns and doctrines of the common
law.‘ They are both written by authors who, while based in the
United
States,
have
a
wide grasp of and substantial experience of non-Amcrican lcgal and
political systems. They are both written by authors whose work has been
analysed by
economist^.^
They are both written by authors whose study has
taken place in the
“
Post-Realist
”
climate of legal scholarship. They are both
written by authors who have read widely in, and are concerned with, social
sciences other than law.
It is perhaps the last mentioned similarity that enables the authors to embark
on
studies of
a
dauntingly wide subject-matter. McNeil is concerned with con-
tract, but explicitly not merely with the contract of the law books, or rather
with the contract defined by
“
law-orientation
”
or determined by the existence
of
a
promise. His definition
of
contract is “the relations among parties to the
process of projecting exchange into the future.”
6
These relations take place in
1
Calabresi and Bobbitt, Tragic Choices (hereafter Calabresi and Bobbitt),
p.
17.
2
Calabresi and Bobbitt as the
1973
Fels Lectures
in
Public Policy Analysis, given
by Professor Calabresi, The
New
Social
Contraci (hereafter McNeil) as the
1979
Rosenthal Lectures.
Professor Calabresi
is
of Yale; Professor Bobbitt of Texas; Professor McNeil
of Northwestern.
4 See
e.g.
Calabresi, The Costs
of
Accidents; McNeil, “The Many Futures
of
Contract,”
47
So.Ca1.L.R.
627 (1975)
among many other works. In this and the
following four sentences
I
refer primarily to Professors McNeil and Calabresi, while
in
no
sense wishing to downgrade Professor Bobbitt’s contribution to Tragic Choices.
5
See,
e.g.
Williamson,
‘‘
Transaction Cost Economics: The Governance of Con-
tractual Relations,”
22
Jo.
of Law and &on.
233 (1979);
Posner, “Review
of
The
Costs
of
Accidents,”
37
Univ. of Chi.L.R.
636 (1970).
6
McNeil, at
p.
4.
345
346
THE
MODERN
LAW
REVIEW
[Vol.
44
a
wide-indeed limitless-range of contexts, and deal with an infinite range
of
subject-matters.
In
an illuminating footnote (both books, incidentally, share an
annoying tendency to have clear footnotes accompanying opaque teat) McNeil
makes clear that this bothers him not
a
jot;
“
.
.
.
my notions of relational contract encompass the nation state itself
as
a
massive contractual relation. This does not, of course, leave us
floundering around unable
to
speak
of
smaller contractual relations. It
merely requires recognition that whenever we speak
of
a
smaller relation,
our analysis is incomplete unless we consider its inter-relation with
larger relations. That is true
of
the nation-state
as
well, since it
is
part
of
the largest contractual relation
of
all,
the
world socioeconomy.”7
The thesis of the book is that there are certain norms common to all con-
tractual relations, that
a
concept of contractual relations based
on
the
“
dis-
crete transaction
”
cannot comprehend the range of contractual relations, or
adequately utilise (wcigh, balance) the shared norms, and consequently that
we must start to construct
a
law (a legal system,
a
range of institutional
deciders and fora for decision) that is predicated upon the existence
of
the
relational contract. Much of this analysis is familiar to students of McNeil’s
recent work, and genuinely causes the reader to look at contract
law
in
a
new
light. But perhaps because parts of the book restate and inevitably compress
propositions earlier expressed in long articles, the analysis is at times less than
convincing. For ease of exposition, McNeil postulates the
“
pure
”
discrete
transaction as
a
limiting case, and correctly points out that it is necessarily
a
hypothesis-the process
of
communication of the content of that exchange, for
example, cannot be discrete to it, but must be expressed in terms (language)
derived from social formations exogenous to it. But in moving from the limit-
ing case to recognisable (real world)
“
discrete
”
transactions, McNeil some-
times does less than justice to the system of law predicated upon them. This
is
perhaps most noticeable in respect of the discrete transaction’s
“
view
”
of
the future and of its treatment
of
power.
Consider these statements:
“
Discrete transactions are not supposed to get into trouble; indeed if the
concept is carried to its extreme, they cannot get into trouble, since every
conceivable contingency is entirely planned,”
L(
“
Discrete transactions have no room for tacit assumptions, other than the
tacit assumption that out there is the external god who will prevent theft,
enforce promises and such like.”
But, at least in
so
far as McNeil claims that contract
law,
as we understand
it, is predicated upon the discrete transaction, those statements seem
to
me to
be seriously misleading. The genius of contract law is precisely that it
docs
provide for trouble, by ensuring that if the obligations accepted by each party
to the contract are not met, an external agency will impose other obligations
on the parties. And if that external agency (typically
a
court, or private
ordering within the shadow of perceptions
of
court-determined doctrine) is
the
“
external god
”
to which McNeil refers, then the assumption in the
second quotation is
so
great as to defeat the negative claim, for not only is the
god tacitly assumed, but
so
are, in any universe inhabited by reasonably intelli-
gent men, the principles and rules upon which the god will decide which
obligations to impose upon which party to the transaction. McNeil comes
pdrilously close
to
realising th’is point in
a
marvellous short passage on
remedies;
“
Remedies (in discrete transactions) should never be open ended,
as they will be if the dispute-resolver has discretion. Open ended remedies
almost invariably introduce relational factors such as relative power, eqdty
and the like.”
10
The difficulty here is that as one moves away from the limit-
~
7
Ibid.
at
p.
124.
9
Ibid.
at
p.
25.
8
Ibid.
at
p.
19.
lo
Ibid.
at
p.
62.
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