Methodology in contract scholarship

This thesis argues that contract scholars, and scholars of private law more generally, should engage more seriously with methodology as a topic of inquiry and debate. It seeks to stimulate and facilitate the development of a more sophisticated literature on methodology in private law by offering a theoretical framework within which it can take place (hereafter, “The Framework”). The Framework identifies fundamental differences which underlie much scholarly disagreement about contract law. It draws an initial distinction between scholarship which takes an empirical or a conceptual approach to the nature of law. This is combined with a further distinction between scholarship which seeks to understand and explain the law, and scholarship which seeks to refine and shape law’s development. Part I shows how an appreciation of these distinctions can improve the dialogue among scholars using examples drawn from seminal work on contract law. Part II shows how such appreciation can also clarify and enrich the changing dialogue between contract scholars and the courts. It then presents an empirical study which uses interviews with High Court and Court of Appeal Judges to explore the question of how judges understand contract law. Part III considers the implications of the study’s findings for scholars of all methodological stripes. It argues that to properly account for the findings, scholars must engage more seriously with methodological issues. Drawing on the experience of other disciplines, it is further argued that by developing a more mature and comprehensive body of literature on methodology, contract scholars can enhance the identity and status of law as an autonomous academic discipline. The Framework is offered as tool for this important task.