Contract and Dispossession

In the not so distant past, law students often opened their Contracts casebooks to find a quotation from Sir Henry Maine, “The movement of progressive societies has hitherto been a movement from Status to Contract.” The placement of this quotation at the beginning of a Contracts book sets the tone for the semester or the year, providing a theme that the law professor either embraced or critiqued: the idea that contract is liberatory. This Essay, part of a collection of essays on the same theme, argues that contract law has become an instrument of oppression and dispossession rather than liberation. Having offered a critique, the challenge then is to consider whether it is possible to restore the liberatory potential of contract. The symposium, Post-Marxism, Post-Racialism & Other Fables of the Dispossession, was an invitation to consider the contemporary relevance of Marxist theory. The aspect of Marxist theory referenced in this particular essay is cultural and ethnographic, a methodology suggested by Robert Sullivan's argument that Marx was anthropological in his epistemology and in his form of argument. Sullivan also argues that the theoretical approach advocated by some anthropologists, a “cultural critique of ourselves,” is Marxist because it is the “modern analogue to Marx's earlier use of primitive society as both a critique of nineteenth century capitalist economy and as an alternative way of seeing reality.” Modern Ethnography, he concludes, “produces its critique...by demystifying and denaturalizing cultural texts and reading their social meaning.”There are two reference points in this cultural critique. One is the importance of social position in a jurisprudence that embraces objectivity; the uncritical and unreflective reliance on hegemonic social practices, codes and conventions in determining whether the parties to an agreement meant or intended it to be legally enforceable. Contract law recognizes and regulates status relationships. The resort by judges to hegemonic conceptions of status results in dispossession when a contract which is exploitive is enforced against the less powerful party or when courts refuse to enforce contracts that have liberatory potential. The other aspect of a cultural critique is a focus on the discursive practices used by judges in contract cases. For example, these rhetorical devices may invoke ideals of freedom, autonomy and voluntariness to explain or justify the enforcement of contract terms that disadvantage or defeat the expectations of workers. In other cases, freedom and autonomy are jettisoned in favor of a rhetoric of scarcity, efficiency or market imperatives in order to defeat the contract claims of employees, particularly when the bargaining power of the workers has been enhanced by collective bargaining.