Visions of Contract
| Published date | 01 October 2017 |
| Author | Sally Wheeler |
| DOI | http://doi.org/10.1111/jols.12050 |
| Date | 01 October 2017 |
JOURNAL OF LAW AND SOCIETY
VOLUME 44, ISSUE S1, OCTOBER 2017
ISSN: 0263-323X, pp. S74±S92
Visions of Contract
Sally Wheeler*
Stewart Macaulay and Ian Macneil were the prime movers in creating
a model of contractual relations that went beyond the confines of the
formal legal model that defined contract enforceability. The work of
both of them has been influential even though it has suffered from many
misdescriptions along the way. In this article I map their respective
contributions and explain the differences between their visions of
contract. I then add a third dimension: the possibilities for a new vision
of contract and contractual relations raised by blockchain.
Do not get me wrong ± reading cases is important. It is just not enough.
Said Stewart Macaulay.
1
In this article I explore the visions of contract
offered by Macaulay and Ian Macneil. For the Law and Society movement,
the quite different but ultimately co-dependent perspectives on contract they
put forward have become the orthodoxy within contract scholarship. The
Journal of Law and Society, as the premier vehicle for socio-legal scholar-
ship in the United Kingdom, has done much to aid this journey and I
reference work published in the journal throughout the article. Macneil and
Macaulay's work on contracts moves Law and Society scholarship in that
area further away from the relevant formal or doctrinal legal structures
2
than
S74
*School of Law, Queen's Universtity Belfast, Belfast BT7 1NN, Northern
Ireland
s.wheeler@qub.ac.uk
1 S. Macaulay, `Notes on the Margins of Lawyering, in Three and Half Minutes'
(2011) 40 Hofstra Law Rev. 25, at 37. Macaulay's comment came in a review
arising from a workshop devoted to Gulati and Scott's project at Hofstra Law
School: see M. Gulati and R. Scott, `The Three and a Half Minute Transaction:
Boilerplate and the Limits of Contract Design' (2011) 40 Hofstra Law Rev. 1. Gulati
and Scott subsequently published a more extensive and developed version of their
work in The 3Ý Minute Transaction (2013).
2 I take doctrinal contract law or formal contract law to be the edifice constructed in
the nineteenth century around the Will Theory and the ideas of laissez-faire and
consent: see D. Campbell and H. Collins, `Discovering the Implicit Dimensions of
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
any other doctrinal area that socio-legal scholarship has turned its attention
to. Their work suggests that the doctrinal model is embracing not only the
wrong values but in doing so is limiting its relevance to a very small number
of business transactions. My intention is to test the durability of their
scholar ship agai nst what i s present ed as a new an d revolut ionary
methodology for contract: the blockchain contract.
The first part of the article looks at Macaulay's work and the development
of contract scholarship as a result of that work's reception and influence.
3
It
explains that his position on contract is frequently misunderstood and that
the sophistication of his position is then lost. The second section looks at the
work of Ian Macneil. This has achieved rather less traction than Macaulay's
in the community of doctrinal legal scholars but has been more readily taken
up by some leading scholars in the fields of law and economics and
economics.
4
I suggest that the reasons for this difference are twofold; first,
legal scholars find the language that Macneil uses and the structures that he
places on exchange activity (which do admittedly obscure his attempts to
situate contract in a broad pattern of social relations) alien, and second,
Macneil is offering a model of contract which presents a significant chal-
lenge to the formal contract model. It is hard to continue to accept the formal
model of contract and its philosophical underpinnings as having very much
explanatory force if one accepts the validity of Macneil's position. That said,
as Lewis points out, the formal model of contract is largely illusory even
without the contribution of Macneil. On close examination its universal rules
melt away into a series of special cases and relationships to which different
rules and different dispute resolution regimes apply.
5
S75
Contracts' in Implicit Dimensions of Contract, eds. D. Campbell, H. Collins, and J.
Wightman (2003) 25. In their article, Campbell and Collins set the parameters of the
doctrinal model against the type of issues that an empirically informed model of
contract would consider to reveal the gaps and flaws in the internal logic of the
former model.
3 I have drawn inspiration for this part of the article from the excellent observations of
David Campbell, in particular, his contribution to the papers published from the
2011 conference at Wisconsin Law School in honour of Stewart Macaulay where he
offers a sophisticated analysis of Macaulay's position on the doctrinal law of
contract and the misunderstanding of Macaulay by doctrinal scholars: see D.
Campbell, `What Do We Mean by the Non-Use of Contract' in Revisiting the
Contracts Scholarship of Stewart Macaulay, eds. J. Braucher, J. Kidwell, and W.
Whitford (2013) 159.
4 Compare, for example, the respective positions of Williamson and Posner on the
merits of Macneil's work: see O. Williamson, The Mechanics of Governance (1996)
and R. Posner, `The New Institutional Economics Meets Law and Economics'
(1993) 149 J. of Institutional and Theoretical Economics 73.
5
See R. Lewis, `Contracts Between Businessmen: Reform of the Law of Firm Offers and
an Empirical Study of Tendering Practices in the Building Industry' (1982) 9 J. of Law
and Society 153. Lewis's piece is the first attempt to pinpoint the failures of the
classical model of contract in a critical fashion rather than a descriptive one. It has
never received the recognition as a field-defining piece that it should have, in my view.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
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