An All of the Above Theory of Legal Development
This paper reviews different theories of legal development in order to highlight their similarities and differences. In the end, as in contract theories, no monist view of legal development possesses the explanatory power needed to understand how law has come to be and where it may take us in the future. What we do have is a foundation built on at least two millennia of legal history. The intellectual starting point for this project is Nathan Isaacs’ unfinished work on a cycle theory of legal development. His view of legal development takes issue with Henry Sumner Maine’s thesis that development in advanced legal systems is progressive in nature. And, more importantly for the current undertaking, that this progression is linear in nature. Instead, Isaacs’ review of thousands of years of Jewish legal development indicated that legal development perpetually progressed in cycles.
The legal evolution that Maine describes in Ancient Law is not directly challenged in this paper. Whether legal development is generally progressive begs the question. The nature of that progression as a movement from status to contract is what cycle theory rejects. Maine’s thesis is that progressive societies eventually strip away status-based relationships and replace status with a generic freedom of contract where the characteristics of the contracting parties become irrelevant. Isaacs argues that taken from a broader historical context legal development is better characterized as cyclical in nature. In sum, legal development is in perpetual motion moving between status and contract-based relationships.
This paper will focus mostly on the legal development of contract law. Roger Cotterrell notes that, “at the most basic level contract is the legal concept which most directly links law and economy because of the significance of the numerous forms of exchange transactions for economic development.” Based upon this assessment, the development of contract law in the nineteenth to the twenty-first centuries will act as surrogate or example of legal development in general. The paper further argues that cycle theory collapses the dichotomies of contract law—formalism/realism, literalism/contextualism, facilitation/regulation, standards/rules—into an oscillating continuum between these opposite views of legal reasoning and views of contract law. The idea of false dichotomies and non-monists views of contract theory may not be novel in nature but, their exploration through the prism of cycle theory presents a new perspective.
Larry A. DiMatteo. 2013. "An All of the Above Theory of Legal Development" The SelectedWorks of Larry A DiMatteo
Available at: http://works.bepress.com/larry_dimatteo/11