Marx Haunts Contracts Text

School's back in session, bright and early in the morning. Yay.

My Contracts text tells me there are two different theories of contract, the "objective" and "subjective." These would seem to correspond nicely to the schools of "legal formalism" and "legal realism," which I only know enough about to be intrigued by. The footnotes tell me that Judge Jerome New Frank, the representative of the "subjective" theory of contract, was a proponent of legal realism, while the great Judge Learned Hand was a proponent of the "objective" theory of contract (which would seem to correspond with legal formalism, although the book doesn't say that).

But all that's just introduction to the next footnote, which provides additional background on Frank's critique of the "so-called 'objective' theory." The footnote says (emphasis added):

The 'actual intent' theory, said the objectivists, being 'subjective' and putting too much stress on unique individual motivations, would destroy that legal certainty and stability which a modern commercial society demands. They depicted the 'objective' standard as a necessary adjunct of a 'free enterprise' economic system. In passing, it should be noted that they arrived at a sort of paradox. For a 'free enterprise' system is, theoretically, founded on 'individualism'; but, in the name of economic individualism, the objectivists refused to consider those reactions of actual, specific individuals which sponsors of the 'meeting-of-the-minds' test [the subjective theory of contracts] purported to cherish. 'Economic individualism' thus shows up as hostile to real individualism. This is nothing new: The 'economic man' is of course an abstraction, a 'fiction.'

So there you have it: You couldn't possibly construct a better example (a "textbook example," no less!) of the way the status quo (in this case the status quo of legal education) actively works to smooth over the contradictions of capitalism to obscure the fact that "free enterprise" is anything but. This is like saying, "Oh, and by the way, your entire life is built around lies." It's so clever how the authors (Farnsworth, Young, and Sanger) stuck this little tidbit in a footnote, and then to marginalize it still further, they wrap it all up with a nice little "but of course we all knew this already, didn't we?"

My professor claims legal realism is "sort of falling out of favor." Shock! You mean the legal establishment is moving away from treating people as human beings rather than as economic tools to be governed by abstract principles? I never would have guessed that by the current state of "globalization"!

Here's what we need: A class called "Marx and the law." Then we'd really be learning something. But instead we'll continue to live in our fictional "free enterprise" system governed by fictional "objective" standards, and we'll continue to wonder why the world seems so screwed up.

Back, ye scurvy dogs!

Posted September 21, 2003 06:46 PM | law school