Introduction
In Justice for Hedgehogs, Ronald Dworkin wrote of the quest for the unity of value:Footnote 1
Poseidon had a son, Procrustes, who had a bed; he suited his guests to his bed by stretching or lopping them until they fit. You might well think me Procrustes, stretching and lopping conceptions of the great political virtues so that they neatly fit one another. I would then be achieving unity on the cheap… But…I hope to develop integrated conceptions that all seem right in themselves…We do not secure finally persuasive conceptions of our several political values unless our conceptions do mesh.
For the private law theorist, however, the unity of value appears to be an elusive ideal. The theories which have set the agenda for private law have tended to be monistic, giving pride of place to a particular foundational value that allegedly constitutes the ‘immanent rationality’ of the domain under interrogation:Footnote 2 promissory morality,Footnote 3 Kantian right and corrective justice,Footnote 4 the welfare economic conception of well-being,Footnote 5 and so on.
Pluralism, in contrast, rejects the dominance of ‘one super value (or metaprinciple) over all others’.Footnote 6 In the realm of contract, one definition of the pluralist enterprise is that
there is no one idea that encapsulates the sine qua non of contract, no nodal point from which all the instantiations of the institutions of contract flow: not autonomy; not consent; not promise; not a community of mutual respectful recognition; not efficiency; not the transfer of proprietary right; not reliance….Footnote 7
Consequently, there is a perceptible concern that the pluralist enterprise is more ‘nightmare’ than ‘noble dream’:Footnote 8
At the extreme, pluralism is not a version of theory, but a threat to theory. When many principles contend for the role of justification, and when there is no simple procedure for ordering their priority, the very existence of multiple principles threatens to undermine the possibility of justification.
Notwithstanding these strong sentiments, the possibility of pluralism should not be written off so quickly. At present, there exists a sufficient groundswell of interest in a form of ‘principled pluralism’Footnote 9 to warrant an examination of its viability. Advocates of pluralistic theories urge that:Footnote 10
It is concerned that courts not rigidly pit contractual consent against no-consent, promise against no-promise, and will against no-will… It focuses on how to reach determinations in light of the background and life experience of contracting parties, not by vaporizing those experiences within a monist theory of contracting.
My purpose in this paper, accordingly, is to explore the promise of pluralism in the realm of contract law. In order to understand the appeal of pluralism, I critique the conceptual strategies adopted by pluralism's alternatives, viz, monistic and dualistic approaches, taking as my reference points a number of well-known works in the contracts canon. Turning towards pluralism, I evaluate three versions in contemporary literature: pluralism across contracting spheres and types, pluralism through consensus and convergence, and pluralism through localised values-balancing and practical reasoning. I suggest that we might embrace some pluralism about contract pluralism, by using these models to construct a framework of ‘meta-pluralism’. I argue that the shaping of contractual norms takes place at macro, meso and micro levels. At the macro-level, we are concerned with plural spheres of contracting activity; at the meso-level, a variety of trans-substantive interpretive concepts that receive some measure of juristic consensus and which anchor normative argument; and at the micro-level, practical reasoning through particularistic analysis of case-specific considerations. Other commentators have applied various pluralistic models to the values underpinning contract formation,Footnote 11 the construction of contracts,Footnote 12 or particular examples of commercial contracts.Footnote 13 For our purposes, I illustrate the suggested meta-pluralistic framework through a case study on the varieties of specific performance, focusing on the macro-level spheres of land, employment and consumer transactions, the meso-level interpretive concepts of ‘legitimate interests’ and ‘joint cost-minimisation’, and micro-level applications in specific scenarios. The choice of specific performance is apt because it is a distinctively contractual remedy, one that is not only doctrinally complex but theoretically of continual interest to those within different camps of private law theory. My analysis explains how the proposed pluralistic framework enriches our understanding of contract, in comparison with monolithic perspectives on the nature of the contractual obligation espoused by hyper-moralistic accounts on the one hand, and the hypo-moralistic position of efficient breach theorists on the other. Whether or not one is of a pluralistic persuasion, the analysis will aim to demonstrate the dividends of reasoning through such approaches.
1. Clearing the ground
While eschewing an exercise in analytical jurisprudence, it will be valuable to clarify certain foundational ideas.Footnote 14 What is the basic unit of deliberation when one considers monism, dualism, and pluralism? It is submitted that the relevant coin of the realm involves considerations of value or normative reasons, which bear upon ‘choice and action, to determining what one ought to do’.Footnote 15 Of course, there are all sorts of metaphysical, epistemological and motivational questions that emerge with a commitment to objectivism as to value,Footnote 16 which are beyond the scope of our discussion. Yet at a phenomenological level, it is undeniable that ‘[p]eople experience the world as infused with many different values’.Footnote 17 In contract adjudication, considerations of rights, community, and welfare in their normative sense ‘all enter a person's practical deliberations as a reason to act in one way or another,’Footnote 18 and are ‘weighed on the common dimension of their normative force’.Footnote 19
Of course, translating values into law is not straightforward, regardless of whether some values are prioritised over others. Collins observes that the ‘transition from normative standard to a particular legal rule does not permit a simple transposition’.Footnote 20 Values may be reflected in a variety of conceptual devices within the law's toolkit, from rules, to factors and guidelines, and more discretionary standards.Footnote 21 Just as importantly, we might ask whether particular values are associated with certain institutions or actors within the legal system. One well-known view takes it that judge-made common law reflects promissory morality or the will theory, while legislative interventions are grounded on consequentialist or instrumental considerations.Footnote 22 Such generalisations are too hasty, since a range of reasons are often utilised by both courts and legislative or regulatory bodies. As Varuhas notes, ‘there is a misplaced tendency in much scholarship to present judge-made law as a domain of pure principle and legislative interventions as foreign, policy-driven impositions’.Footnote 23
Relatedly, we might observe that the contest over the values animating contract often takes place against the backdrop of a state-centric conception of law. This assumption has been fruitfully challenged by contract scholars drawing from the wellsprings of legal pluralism, which conceives law from a global perspective as including a panoply of institutionalised practices oriented to ordering relations at different (supra, sub, non-state as well as statist) levels with a wide range of constitutive, facilitative, and regulative functions.Footnote 24 For instance, Mak's recent work on pluralism in European contract law makes the case for a shift in perspective from state-centric law-making to co-authorship through a range of public and private sources of norms, without reliance on any formal hierarchy, but instead operating on the basis of mutual recognition, toleration and collective deliberation.Footnote 25 Such analyses are important in capturing a cosmopolitan dimension of contract which has not been the traditional focus of contract theorists, but I will have to bracket a more in-depth discussion on this score for a number of reasons. First, the legal pluralist literature uses the terms ‘monism’ and ‘pluralism’ in a different way, referring not to evaluative considerations but to sources of law: monism refers to state-based systems while pluralism refers to law-making beyond the state. A defence of pluralism thus requires the integration of public regulation, codes of conduct and soft law, reputational feedback systems, and so on,Footnote 26 which are not my main focus. Secondly, the legal pluralist literature does raise significant normative issues, but again these are of a different slant. One key fault line is between instrumentalist rationality of European private law with its focus on the integration of the internal market, in contrast with juridical rationality of national contractual regimes embodying their own balance of rights and social justice values.Footnote 27 Discussion of such issues would take us too far afield.
Lastly, on a methodological note, I take it that the task of contract theory is interpretive, in the sense that it aims at revealing an intelligible order in the law, beyond doctrinal descriptions or restatements, historical narratives, or prescriptive law reform endeavours.Footnote 28 We look at the relevant legal materials – ‘decisions in fact made, concepts in fact employed, rules in fact endorsed and applied’Footnote 29 – with a view to distilling the deep structure, underlying concepts, and key values that hold these together. More comprehensively, a theory or conceptual framework aims to organise these foundational ideas into a meaningful account of the practice as a whole. For example, Adams and Brownsword suggest a more pluralistic framework comprising two anchoring ideologies, market-individualism and consumer-welfarism, both of which are associated with sub-principles (security of transactions, certainty, freedom of contract with regard to the former; proportionality, bad faith, exploitation and so on in relation to the latter), which can then be paired with formalist or realist adjudicatory techniques to classify judicial decisions.Footnote 30 The overall aim of an interpretive theory or framework is thus both explanatory and justificatory: for as Gardner observes, ‘[t]o justify something is to explain it rationally’, viz, ‘set[ting] out some or all of the reasons why it is as it is’.Footnote 31 Having made these conceptual clarifications, we are now in a position to evaluate monist, dualist and pluralistic approaches.
2. Beyond monism and dualism
(a) Monism
The fundamental problem with monism is that it makes either of two unsatisfactory moves.Footnote 32 First, it excludes principles it cannot accommodate by re-defining these as non-contractual. Conversely, it may ‘co-opt’ such principles and bring them within the promissory empire in a way that renders the idea bloated or indeterminate.
With reference to the former move, consider Fried's well-known argument that there ‘exists a convention that defines the practice of promising and its entailments’, one that ‘provides a way that a person may create expectations in others’, and that by reference to ‘basic Kantian principles of trust and respect, it is wrong to invoke that convention to make a promise, and then to break it’.Footnote 33 This promise principle is said to be the life of contract. However, Fried's association of promise with contract leads to the conclusion that the doctrines of pre-contractual liability, incapacity, mistake, good faith (as honesty in fact) and the consequences of breach are ‘not part of contract law’, and consequently ‘the field of contract law is shrunk to very few doctrines and rules, that is, the ones that… can be explained by the promise principle alone’.Footnote 34 This ‘purification’ strategy raises a number of concerns. First, it may not be descriptively correct, insofar as scholars, practitioners and lawmakers do see the above doctrines as ‘contractual’, and view the terrain of contract law as more ‘normatively pluralistic’.Footnote 35 Secondly, this re-classification exercise may have negative ramifications: ‘[i]f we classified areas of law on the basis of isolated principles then we would know very little about how existing doctrines weigh them up within the various conventional categories’, such as how ‘will’ aspects of contract are overridden, qualified or supplemented by competing considerations.Footnote 36 More subtly, it may result in a misrepresentation of the force of the promise principle vis-à-vis such competing considerations. For example, Fried sees the mitigation principle as non-contractual insofar as it rests on an independent ‘Good Samaritan’-type affirmative moral obligation ‘to save another from serious loss when the actor can do so with little trouble, risk of loss, or harm to himself’.Footnote 37 The ‘externalisation’ of the mitigation doctrine, and more broadly, associated loss avoidance concerns, may lead to a misunderstanding of how such ideas are embedded within remedial contract rules. For instance, mitigation is present not only in the basic avoidable loss rule that a claimant must take all reasonable steps to minimise its loss and must not take unreasonable steps to increase the loss,Footnote 38 but is also ‘smuggled’ into other rules, such as those limiting the availability of an action for the agreed sum,Footnote 39 based on the case law developing Lord Reid's well-known dictum in White and Carter (Councils) Ltd v McGregor Footnote 40 that if it can be shown that a person has no legitimate interest, financial or otherwise, in performing the contract, rather than claiming damages, he ought not to be allowed to saddle the other party with an additional burden with no benefit to himself.Footnote 41
Moving from ‘excision’ to ‘imperialism’, viz, an exercise in ‘inflating’ the reach of the promise principle,Footnote 42 we find ourselves with further problems. Under this ‘will theory’ model, ‘if voluntary consent gets you into a contract then some defect in the voluntariness of the consent should get you out’.Footnote 43 One notorious difficulty is that the very idea of a voluntarily assumed obligation appears to rest on ‘external’ standards of fairness, a challenge that many have mounted against will theories.Footnote 44 As Chen-Wishart points out in her analysis of vitiating factors, a ‘pluralist defeasibility approach’ better accords with the case law than a ‘vague, bloated, and, at times, denatured concept of consent’.Footnote 45 Thus, in the context of the unconscionability doctrine, courts look to mental and circumstantial weaknesses (such as inexperience, poverty and ignorance, infirmity by reason of age, or emotional strain), coupled with exploitative or bad faith behaviour in taking advantage of the weakness to procure a transaction on terms clearly disadvantageous to the claimant.Footnote 46 The totality of considerations cannot simply be lumped together under ‘defective consent’. Of course, the will theorist might respond by also positing some independent normative criteria in line with her non-interventionist liberal ideals, such as a basic ‘force or fraud’ baseline, for defining full, free and informed consent, and excluding notions such as economic and lawful act duress as well as unconscionability.Footnote 47 By this point, however, the monist might have to concede that ‘promise’ alone is doing little work; rather, the scope of voluntaristic obligation depends on other considerations, including normative and empirical argument as to the ability of courts to regulate markets and prices, and more broadly, the division of labour between social and contractual justice.Footnote 48
Having argued against a monistic approach, it is worth pointing out that a monist might arguably limit the scope of her claims to avoid either of the above vices. Instead of subsuming all of contract under voluntaristic notions, or denying the label ‘contract’ to non-‘will’ aspects of doctrine, one might recognise that contract law at an institutional level falls on the side of what Hart called ‘power-conferring’ as opposed to ‘duty-imposing’ law,Footnote 49 in that it in the main confers upon persons legal facilities for committing themselves to joint projects that reflect and enhance their self-determination.Footnote 50 As we will see, Dagan and Heller suggest that autonomy as choice among contract types is the foundation of contract, but their theory should not be classified as monist because it leaves space open for other values to feature in the configuration of contract types, and the attendant rules on contractual formation, content, and remedies across types. In this sense, the monist's focus on contractual autonomy is not so much wrong as incomplete, and compatible with the pluralistic frameworks discussed below.
(b) Dualism
In contrast to monism, dualism depicts contract law as riven by competing tensions.Footnote 51 Dualism might be highly optimistic, as with Brudner's Hegelian reconciliation of formal right with equitable considerations,Footnote 52 or it might be radically sceptical, as with Kennedy's (in)famous ‘fundamental contradiction’ between individualism and altruism.Footnote 53 From a pluralistic perspective, both views appear to be overstated.
Brudner identifies two competing paradigms in contract law. The first, formal right, is a more libertarian notion of freedom of contract, relying on a thin notion of personhood as capacity for detachment from the ends of life, abstracting away from subjective preferences and natural appetites, need, material goals, concrete intentions for transacting, and human welfare.Footnote 54 This is supplemented by a more egalitarian conception of contract, manifested in various equitable doctrines, that takes a more ‘inclusive’ idea of substantive freedom ‘so as to harmonize the formal capacity for free choice with its concrete expression in particular goals’, and is concerned with freedom as self-determination.Footnote 55 The formal right paradigm taken alone ‘contradicts the very end it purports to realize and points to equity for its own fulfilment’,Footnote 56 but applying the equitable paradigm without restraint leads to the reinstatement of domination.Footnote 57 The unity between the paradigms is realised through the existence of the ‘dialogic community’: the relationship of mutual recognition between the individual agent and the collective, wherein the common good recognises the individual's moral independence in order to be validated as such, and the individual in turn recognises the common good's authority for the sake of its own confirmation as a separate end.
Brudner's insistence on a universal dualism leads him to overload the characterisation of competing polarities. As Gardner has pointed out, Brudner lumps together various dichotomies that do not necessarily travel together under one dialectical process, assuming that agency and welfare, form and substance, common law and legislation, private and public, law and equity, non-instrumentalism and instrumentalism, individual and community, corrective and distributive justice, all reduce to ‘one grand, overarching conflict’, despite the fact that some contrasts may have little to do with others.Footnote 58 Moreover, Brudner's purported contradictions are sometimes awkwardly forced upon the structure of doctrinal debates. For example, Brudner insists that the expectation measure of damages is associated with formal right because formal right ‘sees attachment to things as bondage’, hence under an executory contract each party acquires at most a present property in exchange value promised, rather than any material thing, and the court aims to enforce a ‘fictional agreement between owners of exchange value’.Footnote 59 At times, however, the equitable remedy of specific performance is available where the competing paradigm comes into play and the law sees the parties as free and deliberative agents with special interests, intentions and circumstances.Footnote 60 This characterisation appears foreign to practice, as it is rather difficult to find any cases in which the choice between specific performance and damages is expressed as a competition between detached as opposed to self-determining agency. Additionally, even if we accept some Brudnerian characterisation of grand conflict, it is not clear that the purported resolution through ‘dialogic community’ is anything more than an article of faith.Footnote 61
Consider next the sceptical brand of dualism, associated with the theme of the ‘fundamental contradiction’ in contract law, which Kennedy has formulated, refined, and (on at least one occasion) repudiated.Footnote 62 Kennedy develops a ‘dichotomy of individualism and altruism’, which reflects ‘a deeper level of contradiction…among ourselves and also within ourselves, between irreconcilable visions of humanity and society’.Footnote 63 The individualistic ideal is self-reliance and self-interest as a moral good, while the altruistic counter-ethic is sharing and self-sacrifice, based on reciprocity, moral fault or virtue, and need.Footnote 64 This is said to map onto further conflicts as between ‘community versus autonomy’, ‘regulation versus facilitation’, and ‘paternalism versus self-determination’ in contract law.Footnote 65 These ‘substantive’ debates are also connected with the ‘formal’ dimension of rules versus standards, as the individualistic rhetoric with its focus on self-reliance is aligned with the strict interpretation of formally realisable general rules, while the altruistic mode of mercy and sacrifice is associated with the application of flexible multi-factorial standards.Footnote 66 At the level of political discourse, the individualist social order is generally associated with liberalism, while the altruistic programme is collectivist in orientation.Footnote 67 Ultimately, the recognition of moral and practical conflict at different levels means that no reference to a ‘metasystem’ can be had for reconciliation.Footnote 68
Despite Kennedy being at the opposite end to Brudner in terms of optimism about rational resolution, their strategies for subsuming dichotomies within a grander conflict are in a sense remarkably similar, and are subject to comparable complications. Take the alleged alignment between individualism/altruism and rules/standards. While this may work in some situations, attempting to see the latter debate in primarily political terms can be distortionary. To give one contemporary illustration, the illegality defence in contract and private law has moved from a rules-based approach to a discretionary standards-based ‘range of factors’ approach since Patel v Mirza,Footnote 69 involving considerations as to the underlying purpose of the prohibition which has been transgressed, countervailing public policies which may be rendered ineffective or less effective by denial of the claim, and considerations of proportionality.Footnote 70 The transition is made from a chaotic mass of rules to a clearer universal standard for reasons of coherence and consistency, and to avoid situations where ossified rules have become so detached from underlying reasons as to generate arbitrary outcomes,Footnote 71 and it is hard to detect any conscious or unconscious leaning in favour of ‘altruism’ in the work of scholars and reformers who have advocated for the standards-based approach.Footnote 72
Indeed, Kennedy has at one point renounced the ‘fundamental contradiction’ in a recorded dialogue.Footnote 73 Part of the recantation has to do with the fear that it has the ‘terrible quality of reified abstractions’Footnote 74 and may be seized upon by liberal theorists to rationalise status quo incrementalism or quietism;Footnote 75 another is that Kennedy is appropriately cautious of depicting universal dichotomies: ‘[Y]ou can't plausibly describe “being” except in the vaguest and most general way. You can plausibly describe relatively contextualized, nonabstract, rich, human situations…’Footnote 76 While Kennedy does not directly apply any sort of contextualist method to contract doctrine, this concession to contextualisation is arguably important, for, as I explain below, it counsels against a dualistic characterisation of conflict in favour of a pluralistic one. Moreover, as much as Brudner's reconciliation appears unduly roseate, Kennedy's radical scepticism seems misplaced. It has been observed that Kennedy's contradictions are perhaps ‘rhetorically overblown contrasts, distinctions, or simply alternatives’Footnote 77 and that ‘[a]sessing the relative strength of the competing moral principles can…be a way to solve moral conflicts’.Footnote 78 As we will see, intractable ‘grander’ conflict is arguably susceptible to rational resolution through pluralistic strategies.
3. Paradigms of pluralism
(a) Pluralism across contracting spheres and types
If monism and dualism fall short, can we find a form of pluralism that avoids the charge of being little more than the proverbial ‘dog's breakfast’? One strategy that a pluralist might invoke is to look to types and spheres of contracting, such as emphasising the position and sophistication of parties (say, hiving off firm to firm dealings from firm to individual dealings, and individual to individual dealings)Footnote 79 or transaction or situation types (employment, sale of goods, tenancy, and so on).Footnote 80
The ‘spectrum/sphere’ characterisation has received a recent boost through the highly stimulating work of Dagan and Heller, who put forward a ‘choice theory’ of contract types that seeks to order the values of autonomy, utility and community within and across spheres.Footnote 81 Dagan and Heller argue that the key value of autonomy is best preserved through the state proactively making available a diverse body of normatively attractive contracting types. Within a sphere, that is, a core area of human interaction such as the family, home, employment or commerce, different types of contractual transactions can take place. Choice theory proposes intra-sphere multiplicity of contracting types that are partial functional substitutes for each other, and which present a range of valuable options open to us.Footnote 82 Importantly, they emphasise that ‘values in contract law are local to contract types, not global to contract law’, such that each type ‘represent[s] a distinct balance of values’.Footnote 83 For Dagan and Heller, autonomy (as choice among a meaningful menu of contract types) can be seen as contract's ultimate value, with utility and community as instrumental values, or the goods of contract.Footnote 84 In some arenas, such as commercial transactions, the balance of values favours types which focus on ‘maximizing joint surplus by securing efficiencies of specialization and risk allocation – with social benefits being merely a side effect’; on the other hand, the family sphere emphasises ‘the intrinsic good of being part of a plural subject, where the raison d’être of the contract refers more to one's identity and interpersonal relationships, while the attendant economic benefits are perceived as helpful byproducts rather than the sole…motive for cooperation’.Footnote 85 By taking a wider view of autonomy, Dagan and Heller further argue that choice within types may permissibly be restricted through sticky defaults and mandatory terms, especially where the interaction involves externalities, information asymmetry, cognitive biases, strategic behaviour or other forms of relational imbalance.Footnote 86 It is said that this version of pluralism has the advantage of re-calibrating contract law away from the Willistonian model of a purely general body of rules and principles towards the actual diversity of contracting practices.Footnote 87
Of course, this form of pluralism also has its own challenges. From a political economy perspective, Markovits and Schwartz argue that as ‘many spheres, agents, and value combinations exist in modern society, the rule-generating institution therefore would have to create and supply a very large number of contract types in order to maximize majority and minority choice’.Footnote 88 State institutions might be incapable or find it unfeasible to intervene on this scale, since ‘no rule generating institution could possibly have the resources or knowledge to supply every potential commercial contract dyad with pre-specified project descriptions or sets of goals’.Footnote 89 In response, one might attempt to preserve the core insight of ‘spheres of contract’ while addressing how such concerns can be managed. It might be noted that given information cost constraints and imperfect rationality, as well as the need for legal regimes to reflect inter alia comprehensibility, adequate publicity, and constancy over time,Footnote 90 there is no necessity to tailor the optimal number of available contract types to each contracting dyad's specific preferences. Take an illustration well-known to commercial lawyers: international sales contracts incorporating the International Chamber of Commerce's INCOTERMS 2020 governing typical export transactions, which provide a set of eleven commonly used trade terms reflecting business practice in cross-border transactions.Footnote 91 This functions as a small-scale numerus clausus from which parties can select terms relating to responsibility for carriage, insurance, shipping documents, risks, and various costs, the most well-known being cif or fob contracts in sea carriage. For instance, the cif contract ‘is more widely and more frequently in use than any other contract used for purposes of seaborne commerce’ and an ‘enormous number of transactions, in value amounting to untold sums, are carried out every year under c.i.f. contracts’.Footnote 92 Yet ‘a true fob or a true cif contract is a comparative commercial rarity’ since contracts ‘vary infinitely according to the wishes of the parties’, and ‘it may well be that other terms of the contract clearly show that the use of those letters is intended to do no more than show where the incidence of liability for freight or insurance will lie…but is not to denote the mode of performance’ as between parties.Footnote 93 Accordingly, commercial parties have freedom to tailor terms while building off standardised templates reflecting a range of trade practices, with contractual design involving the interplay between individual actors, the commercial community, and the courts, which is at once collaborative, competitive and iterative.
(b) Pluralism through consensus and convergence
Another pluralistic strategy is to identify where different value systems might nonetheless converge on the legal norms of the contractual regime. As Sunstein explains in relation to what he calls ‘incompletely theorized agreements’:Footnote 94
[W]hen people diverge on some (relatively) high-level proposition, they might be able to agree if they lower the level of abstraction. People are sometimes able to converge on a point of less generality than the point at which agreement is difficult or impossible… What is critical is that they agree on how a case must come out and on a low-level justification.
Sunstein refers to different levels of abstraction – high-level theories, mid-level principles, low-level principles, judgments in concrete cases – and makes the plausible observation that at certain levels, it is possible that consensus may be found across ideological divides, as when we agree on the viability of a clear and present danger test for encroaching upon a constitutional guarantee of free speech, strict liability in tort, the protection of labour unions from employer coercion, and so on, for a number of overlapping reasons.Footnote 95
Moreover, it has been argued that this is normatively desirable: ‘[p]luralist balancing would contribute more than monism to the legal system's legitimacy: simply put, relying on several converging values provides a stronger justification than relying on only one’, and that ‘pluralist justifications can enable all factions to see their values at work in the process’.Footnote 96 Likewise, convergence on lower-level principles and outcomes arguably ‘serve[s] the crucial function of reducing the political cost of enduring disagreements’, since one's larger worldview is not directly at stake in a legal dispute, and for practical reasons ‘may be the best approach available for people with limited time and capacities’.Footnote 97 A focus on workable points of convergence in the interests of stability and inclusiveness is, of course, a theme articulated most thoroughly in Rawls’ Political Liberalism,Footnote 98 which grounds a political conception of justice in ‘an overlapping consensus comprised of all the reasonable comprehensive doctrines in society…in an enduring majority with respect to those rejecting that conception’.Footnote 99 Instead of constructing justice on the basis of a single comprehensive view such as a Kantian notion of autonomy, reasonable persons understand the burdens of judgment and the challenges of persistent disagreement, and look instead to a freestanding political view that incorporates a shared subset of common values across comprehensive doctrines. Applying Rawlsian thought to contract law, Bridgeman argues that it should eschew normative theories based upon ‘thicker’ versions of Kantian morality, Judeo-Christian morality, or utilitarian theory, and instead seek justifications ‘that are acceptable from all reasonable comprehensive viewpoints’.Footnote 100 Accordingly, adjudicators and academic lawyers should be in the business of identifying and facilitating convergence among different perspectives.
The ‘overlapping consensus’ strategy might be helpful, with important qualifications. For instance, it might be useful in pointing to the fact that most leading theories do accept the notion, stated at a rather high level of generality, that legitimate contractual interests should be given legal protection. To take an illustration from an adjacent field, the concept of property (as an in rem right of exclusion) can arguably be grounded upon moral rights and deontological theory, information cost and collective action reasons, human psychology, and habits of mutual forbearance or conventional norms, as ‘a genuine example of the “overlapping consensus” one hears invoked so often in an era not exactly characterized by consensus’.Footnote 101 To some extent, the same can be said of contractual rights. In justifying inducing breach of contract under the Lumley v Gye Footnote 102 doctrine, one can look to arguments inspired by property theory to make the case, such as transfer theory (contract involves a transfer of exclusive authority to exercise control over the thing promised), positive autonomy (in that the stability of contracts, like the stability of ownership, allows persons to increase their options), as well as efficiency and wealth-maximisation (to provide requisite incentives to invest relation-specific effort and resources in transactions).Footnote 103
Still, we should acknowledge that consensus is often provisional and unstable. As Craswell has pointed out, early economic analysis of efficient breach saw expectation damages as a way of achieving an efficient allocation of resources by making sure that the promisor fully internalises the cost of breach and breaches only if a third party values performance more than the promisee.Footnote 104 However, once the logic of efficiency is embraced, ‘the optimal measure of damages from an economic standpoint is simply whatever measure of damages would create the best consequences – the best incentives to take precautions against accidents…to gather information before signing a contract…to do any of a hundred things’, such that ‘the quantum of damages that happens to be best at achieving these instrumental goals need not coincide with the quantum…that would be dictated by some moral theory of compensation’.Footnote 105 Whether or not these arguments are correct (and there is reason to doubt the ability of courts to process all the relevant variables in the economic calculus),Footnote 106 it shows that we should be hesitant to hope for convergence on key questions of contractual regime design.
Moreover, the value in trading off contractual justice for stability is rather contestable. Similar observations have been made as to the Rawlsian ‘overlapping consensus’ strategy by notable commentators: it appears to ‘purchase the neutrality of [a] conception of justice at the cost of forsaking its cognitive validity claim’,Footnote 107 and results in ‘stability replac[ing] justice as the primary objective of the theory’.Footnote 108 Legitimacy is not necessarily secured through a procrustean solution of focusing on similarities and ignoring differences. Instead, some measure of legitimacy is secured through the negotiation of fit and justification, with the threshold of institutional data already constraining the trajectory of normative development, hence expressing some commitment to ‘integrity’ and the rule of law within a community's legal practice.Footnote 109 Accordingly, consensus and convergence may work up to a point, but it is not a complete answer.
(c) Pluralism and localised forms of balancing and practical reasoning
One final group of pluralistic theories involve, broadly speaking, a commitment to localised forms of values-balancing and practical reasoning. Approaches which emphasise close attention to how values play out in particular cases are by no means novel. For example, Collins’ well-known work has stressed that the content of contract law depends not purely on promissory morality but ‘upon a rich dialogue with a variety of normative standards drawn from politics, morality, economics, public policy, conventions, and values internal to the legal system’.Footnote 110 The ‘normative complexity’ of contract is revealed even in textbook cases such as Gibson v Manchester City Council Footnote 111 where an excessively narrow focus on the traditional mirror-image approach is said to miss out on other important considerations such as the protection of detrimental reliance, and the value of informal alternative conventions for identifying agreement.Footnote 112
Similarly, though more with more explicit emphasis on pluralism's philosophical foundations, Saprai has recently put forward a non-foundationalist account of contract. Saprai's account rejects a ‘platonic’ vision of contract and proposes reference to values that ‘are contingent to particular times and places, undetermined, that is, subject to a multiplicity of reasonable interpretations and specifications, and irreducibly plural’, such that ‘it is the responsibility of the courts to balance and rank these competing values to suit local conditions and circumstances’.Footnote 113 Saprai draws inspiration directly from Dworkin, not only for the familiar notion that adjudication aims at the best constructive interpretation of a community's legal practice, by identifying implicit moral propositions that fit and justify the institutional data of contract law, but also to observe how Dworkinian thought points toward ‘local’ priority or coherence within the particular departments of law. This is contrasted with the utopian dream of coherence across the law as a whole: ‘While global coherence looks like an impossible dream for earthly judges, local coherence – coherence within particular departments of law…is achievable.’Footnote 114 Hence, the principle that one should not profit from one's own wrong might explain disgorgement damages, Riggs v Palmer,Footnote 115 and the length of time required to gain title by adverse possession. However, given that most contractual doctrines are composite, the local instantiation of a principle must be weighted as against other important moral and political principles in concrete circumstances.Footnote 116 In addition, local priority also promotes legitimacy by directing us towards popular views about the moral principles that particular areas of doctrine implicate, making for a more ‘republican’ outlook where the tension between conventional and critical morality is addressed contextually, and conduces towards wider understanding and discourse in matters of principle.Footnote 117
This form of pluralism has many attractions, though there are familiar worries that this does not provide anything like an algorithm for achieving rational resolution, often associated with an ‘incommensurability’ critique. These have been discussed elsewhere,Footnote 118 but it suffices to emphasise that insofar as incommensurability is understood more precisely as concerning items that ‘cannot be put on the same scale of units of value’, without a ‘cardinal unit of measure that can represent the value of both items’,Footnote 119 it is clear that this is a common phenomenon in both law and life,Footnote 120 and that reasoned evaluation often proceeds without taking the alignment of all values along a single metric. Instead, what is relevant is the possibility of the comparability of values. While justice and mercy are said to be incommensurable, they are arguably comparable with respect to a specific criterion or covering consideration, such that we can say justice is preferable to mercy with respect to security of private law entitlements and crime control, and vice versa where the covering consideration is personal virtue.Footnote 121 Moreover, the value of a localised analysis should not be underestimated, for ‘even if two abstract values are incomparable…some of their instantiations may be comparable’.Footnote 122 Take for instance the test for the enforceability of a restrictive covenant, which requires that it be reasonable in the interests of the parties and the public.Footnote 123 We might say that the test involves values that are difficult to compare purely at the conceptual level – freedom of contract on one hand, and on the other the value of the defendant's ‘future freedom’,Footnote 124 and the public interest in efficient and competitive functioning of the market economy. Yet in each specific case, these competing values take on particular weights, in relation to the types of proprietary interests secured by the covenant (goodwill, trade secrets, customer connections, investments in a workforce), the scope of protection asserted (contrast a bare non-compete with a confidentiality or non-solicitation clause), and the range of situations in which the test is applied (employment as opposed to sale of business).Footnote 125 Accordingly, while working through the pluralistic normative landscape is always challenging, it ‘does not entail paralysis, indeterminacy, or arbitrariness’.Footnote 126
4. Towards a model of meta-pluralism
(a) Macro, meso and micro-level analyses
Thus far, I have set out various models of contractual pluralism and defended features of which I find appealing. I propose that we can use aspects of the models explored above to construct a working framework for an integrated form of ‘meta-pluralism’. To borrow the language of action frames in social theory,Footnote 127 we can shape the norms of contract law at the macro, meso, and micro levels.
First, at the macro level, the terrain is populated by various spheres of contractual justice, which reflect the great variety of socio-economic arrangements facilitated through contract law: commercial transactions, consumer sales, employment and personal services, family and more intimate relations, and so on, as emphasised by Dagan and Heller's choice theory. This form of mapping domains of human interaction, though to some extent conventionalist in its tracking of socio-legal categories, finds significant parallels in strands of political theory that underscore the pluralistic nature of social goods and their differentiation across different distributive spheres,Footnote 128 and moreover is defensible as an application of ‘situation-sense’, in its understanding of legal norms as clustering around intricate models of interaction which include paradigmatic type-situations and the relationships between type-characters.Footnote 129
At the same time, as Dagan and Heller observe, ‘[c]hoice theory is insistently agnostic regarding the various combinations of “dosages” of community and utility that a society chooses in its contract types’.Footnote 130 This leads us to a second meso-level analysis of the regulative norms within and across contractual spheres. My contention is that at this level, there is a limited form of overlapping consensus, convergence or incompletely theorised agreement as to certain trans-substantive structural concepts, such as good faith, reasonableness, foreseeability, types of rights and their correlatives, and so on.Footnote 131 Such structural concepts could be said to have a fairly thin jural aspect that enables widespread use by participants in legal discourse, which ‘leaves sufficient elbow room for normative value-driven/based constructions’.Footnote 132 One regulative structural concept in contract law, especially in the remedial sphere, is the notion of a ‘legitimate interest’: the ‘availability of remedies for a breach of duty is not simply a question of providing a financial substitute for performance’, but ‘engages broader social and economic considerations, one of which is that the law will not generally make a remedy available to a party, the adverse impact of which on the defaulter significantly exceeds any legitimate interest of the innocent party’.Footnote 133 Of course, the concept of a ‘legitimate interest’ can be instantiated differently depending on the remedial measure in question.Footnote 134 A countervailing structural concept might be remedial ‘joint cost-minimisation’,Footnote 135 understood broadly as a ‘guiding principle’ that the expectation interest should be effected ‘in the way that imposes the least cost on the promisor’;Footnote 136 it is said that ‘though the overriding goal remains protection of the plaintiff's expectation, this should be done as cheaply as possible, and alternatives to performance should be considered’, taking into account bilateral considerations as well as that of the contracting system as a whole.Footnote 137 Joint cost-minimisation is a widely-recognised theme that animates the rule in White and Carter,Footnote 138 what has been called ‘built-in’ mitigation under the difference in value measure in sale of goods cases where there is an available market which the buyer or seller should turn to with all reasonable speed,Footnote 139 the proportionality requirement limiting recovery of damages in some property or services cases to amenity damages,Footnote 140 and so on.
As alluded to, while helping out to anchor argument, analysis at the meso-level does not yield answers at the level of case-specific application. This requires a third, micro-level analysis, involving localised practical reasoning where concepts like ‘legitimate interest’ are fleshed out and acquire particular normative weight. To anticipate the discussion below, one can assert a legitimate interest in physically unique goods by reference to the value of ‘personhood’ property.Footnote 141 Alternatively, some goods might be ‘commercially unique’ by appeal to the value of utility, as an integral factor of production, being ‘unique to, ideally integrated into and an important part of, a plaintiff's wider business interests or asset mix’,Footnote 142 or irreplaceable where acquiring substitutes ‘would be so difficult or would cause such delay that the claimant's business would be seriously disrupted’.Footnote 143 The extent of the ‘legitimacy’ of an interest becomes a context-specific inquiry within various spheres and types of contracting.
The suggested framework of meta-pluralism thus sees analyses at the macro, meso, and micro levels coming together in a complementary and mutually-reinforcing structure.Footnote 144 Its theoretical virtues are as follows. First, as I will elaborate below, it seeks to make sense of complex areas of law like specific performance in a way that is more illuminating than either monism or dualism. In justifying specific performance, a promissory monist like Shiffrin might simply insist that a ‘promisor is morally expected to keep her promise through performance’, and that contract law falls short insofar as it adopts an expectation damages default.Footnote 145 A dualist like Brudner might latch upon the distinction between detachment versus self-determination, which as we have seen is somewhat off the mark in terms of doctrinal fit. The pluralist will explain that the considerations underlying specific performance are best captured through macro, meso and micro-level analyses. Secondly, the framework advocated here builds on the signal advantages of existing models of pluralism, charitably conceived. It attempts to demonstrate that these models taken alone are insufficient in making sense of contract. At the same time, they are not flatly inconsistent, nor are they completely talking past each other. Rather, the key to harnessing their insights is by viewing the different levels of analysis in the suggested three-tiered framework, which helps us to rationalise the data of contract law by directing us first towards the macro-institutional frame of contracting spheres, next taking into account meso-level trans-substantive concepts anchoring debate and discussion, and thirdly, the micro-site of localised balancing and practical application of values. The reconciliation can be summarily depicted as follows.
Thirdly, by tying structure, concepts, values and application together, the framework hopes to redeem the promissory note of a meaningful account of contract law. Take as a brief contrast the sort of theoretical reconciliations adopted in philosophy, such as Rawls’ attempt to order political values in a lexical priority consisting of equal basic liberties, fair equality of opportunity, and socio-economic inequalities governed by the difference principle, as constraints over the pursuit of consequentialist objectives.Footnote 146 Despite any merit this account might have in depicting ‘justice’ at the abstract level of the basic structure of a political community, its method of reconciliation is not easily transposed to contract law, especially if we wish to avoid general ideas simply ‘spinning frictionless in the void’.Footnote 147 Rather, our approach in contract requires close attention to considerations at various levels of concretisation, from the institutional to the conceptual and the practical.
(b) Pluralism in practice: a case study in the varieties of specific performance
(i) Contracts for the sale of land
It is said that specific performance is an equitable and discretionary remedy, which is not given as of right but subject to clearly established bars, such as adequacy of damages, the constant supervision objection, the employment or personal services restriction, uncertainty, impossibility, severe hardship, and want of mutuality, to name a few.Footnote 148 Let us examine a few examples of how the meta-pluralistic framework unpacks the doctrine in a fruitful manner.
In the macro-sphere of real property transactions, the doctrinal starting point is that damages are presumptively inadequate because land is unique.Footnote 149 At the meso-level, one looks at the claimant's legitimate interest in seeking specific performance. A claimant may have a subjective valuation of a piece of land over the market price where residential purposes are concerned, or even as a long-term investor where comparable gains are difficult to assess. However, applying an appropriate micro-level inquiry, one might conclude that no such legitimate interest is present where the claimant's purpose in purchasing the land is purely for a quick resale profit.Footnote 150 As such, some Canadian courts have adopted a ‘critical inquiry as to the nature and function of the property in relation to the prospective purchaser’,Footnote 151 viz, a more tailored legitimate interest test, which involves the court examining whether a claimant might have a business rationale or longer-term development strategy for the property that renders it unique for the claimant's purposes.Footnote 152 On the other hand, when looking at countervailing concept of joint-cost minimisation, we might conclude that compelling the defendant to perform under conditions where the initial assumption of a mutually beneficial exchange does not presently obtain will result in unnecessary costs. Hence it would be preferable to protect the claimant's interest with damages while allowing the defendant to cut her losses as far as possible. This is quite clearly seen in the ‘severe hardship’ bar to specific performance, for instance in extreme situations where a claimant was not granted specific performance of a contract to purchase a house because the defendant-vendor's personal circumstances had changed drastically.Footnote 153 Specific performance may be refused ‘where the cost of performance to the defendant is wholly out of proportion to the benefit which performance will confer on the claimant’,Footnote 154 which is very much a contextual inquiry situated within this larger sphere of transactions.
(ii) Employment and services
Take as a contrast the macro-sphere of employment and personal services. The doctrinal starting point treats such contracts as coming under a bar on the availability of specific performance.Footnote 155 Applying our framework, we might say that within this sphere, the meso-level concepts of legitimate interests and countervailing need for cost-minimisation take on different contextual weights depending on the sub-categories within the sphere and their application at the micro-level of individual disputes. As against employees, this bar is well-established and statutorily enshrined in UK law.Footnote 156 The primarily financial interests of an employer in securing the employee's services, even where close substitutes are unavailable, runs up against the cost to the employee's autonomy. It is argued that contracts of service might become contracts of involuntary servitude;Footnote 157 or that there is a ‘value of change of mind’ which should permit autonomous persons to ‘learn, mature and recreate ourselves’Footnote 158 and revise their ground projects. However, these considerations stack up differently when considering specific performance against employers. It is said that ‘in recent years the common law has shown much greater willingness to acknowledge that a worker has a variety of interests in the employment relationship’.Footnote 159 Conversely, there is an asymmetry of control, power and access to resources such that specific performance ‘does not have the same element of subjugation that making an employee specifically perform does’.Footnote 160 This recalibration is exhibited in the wrongful dismissal jurisprudence, where courts have seen fit to specifically enforce contractually-agreed disciplinary procedures.Footnote 161 While one would be hard pressed to argue that an employee has a legitimate interest in lifetime employment, it would surely be reasonable to see employees as having legitimate personal and reputational interests in properly-executed disciplinary hearings, particularly where the procedural irregularities were serious,Footnote 162 and dismissal without due process would make it difficult to get an equivalent position.Footnote 163
At times, the countervailing considerations involve disproportionate costs. Accordingly, in applying the notion of joint-cost minimisation, specific performance will not be ordered where constant supervision is required, since the court could not be constantly watching over a continuing contract, such as an obligation to provide a porter constantly in attendanceFootnote 164 or an artiste's obligation to perform.Footnote 165 This would require courts to entertain repeated and costly litigation to execute orders that might demand ‘an indefinite series of rulings’.Footnote 166 Again, the extent of these systemic costs are context-specific: unlike orders to carry on activities, orders to achieve a particular result may not involve continual litigation,Footnote 167 and costs of enforcement might be attenuated by having a sufficient definition of what is required to be done in the order, so that courts can verify compliance without having to incur the time and expense of interpreting or implying further terms.Footnote 168 A determination of specific performance thus requires an understanding of how sphere-specific normative considerations of employer or employee-legitimate interests are balanced against particular countervailing costs to parties or the contracting system in making the award.
(iii) Consumer contracts
Lastly, consider the macro-sphere of consumer transactions. The current regime in UK law under Part 1 of the Consumer Rights Act 2015 provides a number of special remedies for a consumer under a contract for the supply of goods or digital content, to the effect that various instances of non-conformity give the consumer a right to repair or replacement, within a reasonable time, unless repair or replacement is impossible or disproportionate (as between these two rights);Footnote 169 and in the case of a supply of services by a trader, a consumer has a parallel right to require repeat performance within a reasonable time in the case of non-conformity, unless this would be impossible.Footnote 170 Courts have the power to enforce these remedies by an order of specific performance pursuant to s 58(2) of the 2015 Act.Footnote 171
From the perspective of meta-pluralism, we can better rationalise the law as follows. Within the sphere of consumer transactions, one has to examine the legitimate interests of consumers as against joint-cost minimisation considerations in deciding whether to make specific performance available. Despite the fact that consumer goods, digital content, or services are not invariably unique goods, it is arguable that the consumer's legitimate amenity and other interests in performance are best served through a more protective remedy, given that sellers are likely to have better access to the market, knowledge of market conditions, and comparative advantage in evaluating quality of performance, hence leading to lower cover costs.Footnote 172 These point in favour of specific performance, as opposed to giving consumers cover damages to seek a market cure. Of course, cost considerations are bound to surface contextually in micro-level analysis. Hence, while the availability of specific remedies of repair or replacement cannot be discretionarily limited on the basis that they are costly compared with other remedies such as a price reduction or damages,Footnote 173 the statutory provisions are tailored to allow for a disproportionality comparison as between repair or replacement remedies in goodsFootnote 174 and digital content contracts.Footnote 175 For example, if the costs to the trader of replacement would be half that of repair, the latter might be deemed disproportionate, but arguably not if replacements cannot be procured quickly enough, taking into account inter alia the significance of the defect both monetarily and practically, as well as the inconvenience caused to the consumer.Footnote 176 Again, within the distinct macro-sphere of consumer contracts, the meso-level concepts of legitimate interest and joint cost-minimisation play out quite differently in micro-level application.
(c) Pay-offs of a pluralistic approach
Adopting a pluralistic framework has the further benefit of dissolving certain persistent puzzles over the nature of contract. Recall that a strong promissory account, such as Shiffrin's, insists on the moral priority of specific performance, as the nature of the contractual obligation should allegedly reflect the moral commitments made through the practice of promising, in order for contract law to exhibit compatibility with the conditions for flourishing moral agency. Hence, once we pass over from specific performance to damages, ‘[t]he law…fails to use its distinctive powers and modes of expression to mark the judgment that breach is impermissible as opposed to merely subject to a price…reflect[ing] an underlying view that promissory breach is not a wrong, or at least not a serious one’.Footnote 177
In diametric opposition to this view is the amoral Holmesian perspective that the ‘duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it, and nothing else’.Footnote 178 One influential refinement of the Holmesian view is found in the work of Markovits and Schwartz, who argue that contracts between commercial parties should be understood through a ‘dual-performance’ hypothesis: the contractual obligation is in truth a ‘perform or pay’ set of options, rather than a straightforward obligation to perform.Footnote 179 This is allegedly grounded on the rationality of promisees standing to gain more from better price terms in exchange for an expectation damages regime, as opposed to a specific performance default which would lead a promisor to charge a higher price if she does not have the option to renege and accept better offers in standard cases of gain-based ‘efficient’ breaches.Footnote 180
From a pluralistic perspective, both views fail to demonstrate a situation-sense of macro-level spheres of contracting, the various meso-level considerations of legitimate interests and joint-cost minimisation, and how these are tailored to micro-level applications. Consequently, they end up universalising in a hyper or hypo-moralist direction. Take Shiffrin's promissory account: Shiffrin tends to speak of contract (as opposed to contracts) in the abstract, suggesting a certain degree of homogeneity as a matter of institutional practice. Her argument ends up misconstruing the variegated contractual landscape, the need to recognise relevant legitimate interests as well as the normative pull of joint-cost minimisation considerations, and their instantiation in different scenarios. A pluralistic model views the morality of contract law as ‘less the stern morality of promise keeping as a morality of adjustment, release and forgiveness in contractual relations’.Footnote 181 We have seen this exhibited in the above analysis, where the tension between keeping parties bound to give effect to legitimate contractual interests competes with notions of joint cost-minimisation in different contexts, such that severe hardship concerns in a sale of residential property, autonomy concerns in employment contracts, disproportionality concerns in consumer contracts, and wider systemic and administrative costs of enforcement may all play a role in providing countervailing reasons for departing from specifically enforcing a contractual obligation. Hyper-moralism is thus too undiscriminating, failing to appreciate that the morality of contract is informed by a plurality of considerations.
Likewise, from the perspective of pluralism, the economistic picture misses the point. It is not true that once a strong promissory account is rejected, the alternative is a general and un-contextualised privilege to ‘perform or pay’, unmediated by the considerations that lead to a more textured remedial regime. First, most ‘efficient’ breaches are loss-minimising, referring to situations where there is a subsequent rise in the cost of performance due to imperfect information about the future states of the world at the time of contracting, leading to a good faith defendant having to breach and pay damages rather than to incur the prohibitive costs of performance.Footnote 182 Here, contract law does not allege the moral equivalence of Holmesian options, recognising that a wrong has been done, but reasoning as follows: if there is severe hardship to the promisor in the form of extreme personal circumstances, and an order for specific performance of a residential property would exacerbate such hardship significantly, but an order for damages would not, while giving a promisee the means to be put in a position as if the contract were performed, the latter is to be preferred.
Secondly, where efficient breach refers to gain-based scenarios, neither is it the case that the law endorses the Markovits and Schwartz view that one can always infer from a putative lower price the conclusion that parties would have actually agreed upon a priced-adjusted compensatory damages regime and waived any preference for specific performance or supra-compensatory remedies, when they may not have contemplated such default remedial terms at all.Footnote 183 Rather, contract law awards the well-known remedy of negotiating damages on the basis of a legitimate remedial interest: ‘the claimant has in substance been deprived of a valuable asset, and his loss can therefore be measured by determining the economic value of the right in question, considered as an asset’.Footnote 184 The precise nature of this valuable interest has been expressed in different waysFootnote 185 – as an opportunity to bargain for a licence fee; dominium or control; the power to insist on claim rights or stop an infringement by applying to court for ex ante injunctive relief – but again at the bottom-line the failure to perform remains a wrong requiring a remedy to vindicate the particular interest undergirding the contractual right. Of course, joint-cost minimisation considerations inform the award of negotiating damages, such that one guideline is for the court to be satisfied that orthodox compensatory measures and specific relief are unavailable, hence excluding situations of mere evidential difficulty, and confining the award to rarer situations of ‘damages without loss’ or exceptional cases where damages are practically impossible to quantify.Footnote 186 Accordingly, a pluralistic account directs our attention to how various considerations of legitimate interests and joint-cost minimisation play out across different forms of breach, and makes more sense of the remedial landscape than the hypo-moralistic economic perspective. In short, both ‘always keep your promises’ and ‘there is no wrong in efficient breach’ are overly reductive from a pluralistic perspective.
Conclusion
I have hoped to make a number of contributions to the project of pluralism in contract theory: to identify where monism and dualism fall short, to discuss key forms of pluralism in contemporary discourse, and to suggest a working framework of ‘meta-pluralism’ integrating these forms at macro, meso and micro-levels, fleshed out through a case study on the varieties of specific performance, which leads us to an enriched understanding of the nature of contract. Still, I have made no pretension to a grand reconciliation of plural values (à la Dworkin in Justice for Hedgehogs) across the entire field of contract. One may possibly still think the pluralist like Mr Brooke in Eliot's Middlemarch, grappling haplessly over the form and limits of theory:Footnote 187
The fact is, human reason may carry you a little too far – over the hedge, in fact. It carried me a good way at one time; but I saw it would not do. I pulled up; I pulled up in time. But not too hard. I have always been in favour of a little theory: we must have Thought; else we shall be landed back in the dark ages.
Perhaps we ought to be more charitable. The contract law pluralist, in recognising the diverse terrain of the normative landscape, holds out for the possibility of rational resolution, hence embracing both anti-scepticism and fallibilism, yet coupled with the modest hope that what she is chiselling away at amounts to a little more than ‘muddling through’.Footnote 188
