When we started ‘The Public Life of Private Law’ one of the conversations we wanted to have with participants, and with others following the series, was about teaching private law from a critical perspective. In particular, we wanted to think about how those of us who fell into teaching private law through a mixture of necessity and serendipity, but who research in what seem to be very different areas, could bring something of those other interests to our teaching. I want here, following César Augusto Baldi’s contribution on de-colonizing the teaching of human rights, to make some suggestions for a de-colonized, or radical set of pedagogic techniques in contract law. Almost twenty years since the publication of Wheeler and Shaw, and nearly as long since Kastely, Post and Hom’s Contracting Law, I don’t make any claims to originality. I welcome any comments or responses.
Asking questions about the elimination of particular voices from a canon is an old critical tactic. We might have recourse to literature, to art or to scholarly reflection in search of accounts of what contract has meant for those other than the ‘rugged individual’ of what we call, as shorthand, ‘classical contract theory’. But the choice of judgments for study can also be strategically important here. Granted, it can be very difficult in a contract law course which is hived off from labour law, consumer law and family law to raise political questions of silencing and power. But there are always possibilities for close reading of judgments, using the creative techniques of the law in context movement. For instance, we might draw attention to these, among any number of others:
- the employees of a small company embroiled in contract litigation.
- the nature of a political organisation attempting to hire a council venue;
- the unexpected appearance of a contract doctrine in the dispute over Diego Garcia;
- the story of industrial unrest behind a well-known case on consideration;
- the story of Aboriginal land rights behind a case on termination of contract.
Grand Narratives 1: Rises and Falls.
Like the human rights syllabus, contract has its totemic stories. The most familiar; the grand narrative of ‘the rise and fall of freedom of contract’ has the undergraduate contracts syllabus in something of a stranglehold. We move from status to contract, and we are betrayed. Contract becomes terrible in the 19th century and over time, thanks to Europe and the consumer movement, grows less so. Courts shuttle between a position of deference to individual market choice and an over-weaning paternalistic one. There are any number of routes out of these binaries. One, which naturally has particular currency in feminist studies of contract, is to unpack the very notion of freedom of contract; to talk about unbearably rigid distinctions between corrective and distributive justice, procedural and substantive fairness; to think about whether the market which appears in the decided cases is the only market there can be. There are some resources for this kind of work within mainstream private law theory. But we might introduce American Critical Legal Studies, or even European critical theory (I think that there are few more astute or riveting insights into the betrayals of ‘freedom of contract’ than those provided by Nietzsche, Marx, Sartre, or even Benjamin). As Peter Goodrich has taught us, another obvious route away from the ‘rise and fall’ narrative is through alternative histories of women’s contracts or the contracts of slaves, or the unsettling experiences of those who are supposed to be the most free, which upset the smoothness of these transitions, highlighting anomalies, inconsistencies and resistances.
Grand Narratives 2: The Death and Greed of Contract.
The second grand narrative of the contract syllabus tells us that contract is less important than it was – that it is so shot through with European law, tort, human rights and other specialised areas of law as scarcely to matter anymore. At the same time, critical legal scholars will be aware of contract – even at a conceptual level – as a central governmental technique of neoliberalism. They will know that contract is used both to privatise what were once central functions of government, and to induce certain forms of desire and self-management, first in liberal (and indeed in colonial) and now in neoliberal subjects. For instance, our government’s contracting out of functions in the areas of prison management, immigrant detention and deportation are a case in point – similar practices stretch into any number of areas. Why should these ideas and these contracts be left outside the contracts classroom? Why should the mainstream syllabus not consider these public processes of tender, drafting, bargain, enforcement and termination?
Strategy, Legal Reasoning and ‘Thinking Like A Lawyer’.
I am very grateful to have inherited an Obligations course already shaped by a progressive pedagogy which shines through in John Wightman, Brian Simpson and Alan Thomson’s contract scholarship, and in Kirsty Horsey, Wade Mansell and Joanne Conaghan’s work on tort. With that teaching tradition comes a community of students who are, to some degree, open to less traditional perspectives on the courses they study. The solidarity of colleagues and students makes certain kinds of teaching possible. Outside of that sort of environment – and if the dominant textbooks in contract law are anything to go by, ‘that sort of environment’ is a small archipelago – one tends to meet calls to justify this kind of teaching. This demand is often grounded in the assumption that critical legal thinking is incompatible with any sort of legal training worthy of the name. A critical approach to contracts, I think, will try to centre students’ reflection on their own potential and ambitions as members of the professions. If the traditional contract syllabus guides them to imagine themselves as indispensable and invincible servants of global industry, a critical syllabus can intervene from a perspective of wry humility. Consider Stewart MacAulay’s relational contract theory, which suggests that contract law is less important than we think or Mitu Gulati’s more recent work on sovereign debt contracts, which presents lawyers as simultaneously baffled by and proud of the far-reaching work they do. Read them with Annelise Riles, who suggests that contract lawyering can be important but not in the ways we might suspect.
Equally, if we care about training lawyers who will go into practice, and I think we should, then we may want to equip them with the seeds of critical legal strategies and techniques in order that they can contribute to whatever precarious social changes may be worked through the law. For instance, Linda Mulcahy’s closely reasoned alternative feminist judgment in Baird v. M&S, written as part of the Feminist Judgments Project is, by the nature of that project, designed both to radically rethink the law of contract formation and to closely mimic the rhetoric and technique of traditional judicial reasoning. It is a model of Roberto Unger’s deviationist doctrine. Reading it together with the judgment it reworks is an effective exercise because it demonstrates to students that it is possible to work small ruptures in the fabric of even the oldest parts of doctrine. In a slightly different exercise, following Carl Stychin, we might read Sutton v. Mischon de Reya – a case about a solicitor’s negligence after all – and ask how contracts might be used to give legal substance to forms of life that otherwise appear to fall outside law’s remit (a question that we might otherwise have to leave to the lex mercartoria). Exercises of this kind may ‘persuade students that legal discourses and practices comprise a medium, neither infinitely plastic nor inalterably rigid, in which they can pursue moral and political projects and articulate alternative visions of social organization and social justice’. That is also part of why we invited so many practitioners to be part of our seminars – to create an archive of emerging practical strategies in private law, and to bring them with us into the classroom.