Private Law Theory

ABSTRACT
‘Agentic’ ‘AI’ that can pass the ‘Turing Test’ might behave in ways externally indistinguishable from persons but without our subjectivity or mental states. Under the so-called ‘objective’ theory of contracts, taught as black letter in the common law world for a century, this is purportedly enough for large language models to enter into self-binding contracts. In contrast, this Chapter argues that this possibility offers a reductio in favor the alternative view that takes the ‘objective’ theory as the law’s evidentiary commitment rather than a normative or metaphysical one. For starters, it is not clear that language ‘agreed upon’ by entities without mental states means anything, at least not anything anyone cares about. More generally, there is no normative reason for the law to attempt to enforce the output of probabilistic language models entirely disconnected from subjective intent; the only possible justifications of contract are, in the end, ‘subjectivist’.

Toomey, James, Zombies, AI, and the ‘Objective’ Theory of Contracts (March 12, 2026), Harvard Journal of Law & Technology (forthcoming 2026).