James Gordley

Contemporary contract theories fail to escape their bondage to 19th century liberal philosophers. Some are based on utility or preference satisfaction, but they disregard justice. Others try to extract conclusions for general concepts such as liberty or autonomy, but they cannot do so without first smuggling their conclusions in the definitions of these concepts. These problems can be resolved by looking in a different direction: to the Aristotelian idea of contract as voluntary commutive justice on which contract theory was grounded before the 19th century. In the Aristotelian tradition, a contract of exchange was defined in terms of its purpose: to enable each party to obtain what he valued more in return for what he valued less without enriching the other party at his own expense. It united a concern for concept of a contract, the purposes of the parties, and the justice of their transaction rather than splitting them apart.

In Roman law, as interpreted by the medieval jurists, in a gratuitous loan (commodatum), the borrower was liable for culpa levissima, failure to use be as diligent as “most diligent” (diligentissimus). It would seem, then, that a person could be liable for conduct that he could not help. That consequence troubled the medieval canonists a person would then be liable who had not sinned. It troubled the late scholastics because a person would then be liable for an accident, which was not a violation of commutative justice. Some concluded that liability for culpa levissima was a creature of positive law, based on pragmatic considerations but with no grounding in principle. There was another explanation glimpsed by the late scholastics and by Hugo Grotius: commutative justice requires that one who borrows gratuitously indemnify the lender against any loss. Unfortunately, in the following centuries, that explanation was lost from sight.

Professor Ernest Weinrib has argued that restitutionary damages must be understood, not as a deterrent to wrongful conduct, but as a requirement of commutative Justice. Professor Gordley agrees, but claims that a purposive understanding of commutative Justice can shed more light on restitutionary damages than the formal understanding of Professor Weinrib. A purposive understanding enables us to distinguish appropriation of a right from mere inteference, to distinguish true restitutionary damages from damages in lieu of a forced sale or hold-up; and to explain why, normally, it should not matter whether the defendant acted wilfully or innocently.

Professor Ernest Weinrib has argued that restitutionary damages must be understood, not as a deterrent to wrongful conduct, but as a requirement of commutative Justice. Professor Gordley agrees, but claims that a purposive understanding of commutative Justice can shed more light on restitutionary damages than the formal understanding of Professor Weinrib. A purposive understanding enables us to distinguish appropriation of a right from mere inteference, to distinguish true restitutionary damages from damages in lieu of a forced sale or hold-up; and to explain why, normally, it should not matter whether the defendant acted wilfully or innocently.

In this essay Suárez’s contribution to the development of the natural law within the Salamanca tradition are examined. Two accusations commonly laid against Suárez’s position are addressed—the charges that his account is minimal and negative on the one hand and essentialist on the other. It is argued that these two charges are conceptually connected because Suárez held a metaphysically rigid conception of what the natural law is. In Suárez’s metaphysically rigid conception the natural law becomes an abstract, almost Platonic entity, which prevented Suárez from restricting the natural law and its application to any specific circumstances.

The book is an intellectual history of the work of Western jurists from ancient Rome to the present. It discusses the Roman jurists, the medieval civilians and canon lawyers, the late scholastics, the natural law schools of the 17th and 18th centuries, the positivism and conceptualism of the 19th century and its influence on common law, and the reaction against conceptualism since the late 19th century. Rarely have jurists worked alone. Rather, they have worked in schools, each of which pursued a different project. The projects of the jurists had one element in common: they were attempts to understand and explain the law. Commitment to that project defines the work of a jurist and distinguishes it from the work of others who take part in fashioning and applying the law. Yet the project of each school of jurists had goals and methods of its own. By identifying them, this study shows how the jurists themselves understood their work and how these goals and methods shaped and limited what each school could achieve.

The common law of England and the United States and the civil law of continental Europe have a similar doctrinal structure, a structure not found in the English cases or Roman legal texts from which they supposedly descend. In this original and unorthodox study of common law and legal philosophy the author throws light on the historical origins of this confusion and in doing so attempts to find answers to many of the philosophical puzzles which contract lawyers face today. Reassessing the impact of modern philosophy upon contract law, the author concludes that modern philosophy having failed to provide a new basis for a coherent doctrinal system in the law of contract, the only hope for devising such a coherent system lies in rediscovering the neglected philosophy of Aristotle and Aquinas.