Metaphors, Models, and Meaning in Contract Law
By Jeffrey M. Lipshaw.
Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? This article is an attempt to bridge the gap, combining insights from academic theory and real-world law practice. My claim is that the law as discipline has developed its own powerful but self-contained conceptual framework—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law, something that is largely the creation of private parties and not the state, requires dealing with legal truth not just as a coherent body of normative doctrine, but also correspondent in some way to the parties’ actual self-legislation. In other words, the exercise of understanding the law relating to transactions is not wholly descriptive—”to what did the parties agree”? Nor is it wholly normative—“what should be done when the parties dispute the nature or terms of their agreement after the fact?” Much of the difficulty of the first-year contract law enterprise lies in this conflation of the law’s usual after-the-fact normative focus (as, say, in tort or criminal law) with an inquiry into what private law the parties actually meant to create before the fact.
I propose escaping the epistemic trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas as objects, and the transaction lifecycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional lifecycle, and to consider the perspectives of the participants in or observers of that process. In particular, I consider the models and metaphors that shape the conceptual frames from within which those participants and observers perceive, make use of, and derive meaning from what end up as contracts, which are best thought of as the objective manifestations of inter-subjective agreements.