Private Law Theory

Abstract:
… This paper will review a number of theories of legal development with a focus upon Henry Sumner Maine’s progression thesis and Nathan Isaacs’ cycle theory. Contract law will provide the area to be tested by the different theories of legal development. Other theories to be discussed include: evolutionary efficiency, evolutionary biology, and Kuhnian theory. In the end, the paper advances a theory of cyclical progression. At the center of this theory is Isaacs’ belief in a principle-based evolution of a living, dynamic law. An offshoot of this theory is the recognition that the dichotomies of contract law are false dichotomies. A theory of “all of the above” accepts that elements of both sides of the dichotomies has always and will always exist in contract. Contract law is formalistic and realistic; literal and contextual; facilitative and restrictive; represented by both standards and rules; and is both freedom and status-based. Finally, contract law, and law generally, is both cyclical and progressive.

Larry A. DiMatteo. “AN ‘ALL OF THE ABOVE’ THEORY OF LEGAL DEVELOPMENT” TBD (2012).

First posted 2011-09-17 07:55:23