Few contract theories begin with so comprehensive a discussion of method as does Stephen Smith’s book, Contract Theory. In the first chapter, “What Is Contract Theory,” Smith describes an interpretive approach guided by four goals: fit with the existing law, internal coherence, moral attractiveness, and transparency to legal actors.
This chapter, to appear in the forthcoming Understanding Private Law: Essays in Honour of Stephen A. Smith, does a deep dive into Smith’s description and defense of those goals. Smith pictures the contract theorist as an observer standing outside legal practice, interpreting the law but not participating in it. That picture results in some gaps and tensions within Smith’s methodological argument. An understanding of the contract theorist as participant in the project of constructing a just, efficient, socially beneficial law of contracts better grounds an interpretive theory of contract law and suggests recasting the four goals Smith identifies. This is not so much a rejection of Smith’s approach as a suggested reorientation of his interpretive project.
Forthcoming in Understanding Private Law: Essays in Honour of Stephen A. Smith (E. Fox-Decent, J. Goldberg & L. Smith eds., Hart).
Scholarly Commons Citation
Klass, Gregory, "What Might Contract Theory Be" (2023). Georgetown Law Faculty Publications and Other Works. 2533.