The Quixotism of a Relationally Constituted Contract Law

Cushley-Spendiff, Ryan and Campbell, David (2022) The Quixotism of a Relationally Constituted Contract Law. PhD thesis, Lancaster University.

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Abstract

Relational contract theory is often seen as a rival to classical contract. Despite its inception in the early 1970s, the full theory does not seem to have made much headway into the substantive law of contract within England and Wales outside of doctrinal rhetoric in good faith. Part of this stagnation is due to the convolution that surrounds relational contract theory, both in its descriptive and normative claims. This thesis will attempt to rectify the situation and elucidate relational contract theory as the neutral analytic tool that it was designed to be. It will be shown that relational theory is not inherently opposed to the continuation of the classical law and that a change to a relationally constituted law of contract would be damaging. While the classical law is founded on false premises, the effect is not as dire as academics posit, and in a world that is better off with this flawed doctrine relational theory will encounter the awkward question of its utility. The fact that the theory would not do well in substantive law does not make its norms and narrative any less accurate, and this thesis maintains it still has a place. In determining an adequate place the thesis will reference an obscure jurisprudential theory developed by Niklas Luhmann known as Autopoietic Systems Theory. With reference to this, the thesis determines that relational contract theory is a description of the interplay between psychic and social systems. The theory is both separate and distinct from the legal subsystem of society, which observes the theory's noises and generates its own internal communications. On this abstract theoretical level, the thesis will deduce that further distortion of the theory by the legal system is highly likely, and therefore integration is unlikely to find any real success.