Research On The Western Legal Contract Theories

There are three obvious stages in the development of the western legal contract theories, the era of ancient Greek thinking of contract, classic contract theory and contemporary legal contract theories. The thought in them is plentiful and accumulated by thousand years. However, those stages are not independent and there are regularities in them. The core of ancient legal theories is good that is derived from ancient Greek philosophies and used as the standard to judge the validity of contract. This thought in contract law emphasizes moral and take it as basement. The classic contract theory is the product of victory of bourgeois revolutionary and it take autonomy and freedom of contract seriously. Contemporary contract theories are based on the criticism and successive on the classic contract theory and divided into economic analysis legal contract theories and deontic legal contract theories that claim autonomy theory. There are many arguments between them and neither can win the competence. Rawlsian justice theory is looked as the important advance in the contemporary western liberalism philosophy, but it is ambiguous in its text and difficult to be applied to the research on legal contract theories. Thus, this article analyzes these two major contract theories in the perspective of right and good of ethics, and draws a conclusion that it is due to the difference arrangement to the priority of right and good that there are fundamental differences between their arguments. Then this article discusses the possibility of application of Rawlsian just theory in the research on legal contract theory and get an affirmative conclusion. At last, with experiences on the development of the western legal contract theories, this article points out several problems to be paid more attention to in the construction and development of Chinese legal contract theories.This article is divided into four parts.The first chapter is about the review on the development of the western legal contract theories. In the review of ancient Greek philosophers'thinking on contract, this article points out that the philosophy theory of Plato fixed the notions of value that have been deeply embraced in the western cultural tradition and his dialectic had an effect on the methodology of legal contract theories. The division in justice by Aristotle who made a distinction between corrective justice and distributive justice is the original of theories on modern contract law and tort law. The natural law theory of the Stoic school of philosophy had an important effect on the ancient Roman contract legal system. With the review on the Roman legal contract theory affected by the natural law, this article explains that because of the special age, popularization of legal professional and equity theory, there was a change on the requirement to the contract representation in Roman legal contract theory. Early was much stricter. In the end of this chapter, there are comparisons between religion law and custom law on their regulations on the contract.In review of the history of the classic legal contract theory, this article points out that the legal philosophy foundation of it is the classic natural law that takes the reason of man as the basement for legislation and emphasizes the equal of man. Then it discusses the construction and perfection of the classic legal contract theory with the help of analytical positive law. There is distinction on the appearance of contract laws in the civil law and the common law with the same guidance of the classic legal contract theory. In common law, it emphasizes consideration, whereas in civil law, it is agreement.The second chapter is on the development of contemporary legal contract theories. It discusses the setup of modern legal contract theories that are based on the criticism and successive of the classic legal contract theory. The civil law set up the responsibility of negligence in contracting and made the obligation of good in faith a principle to make up the shortcomings of the classic legal contract theory, while the common law gave up the theory of consideration and largely applied the silence rules to finish this task.In the introduction of the change of contemporary legal contract theories, this article firstly specifies the naissance of economic analysis of law and the effect of pursuing efficient on legal contract theories. Then this chapter introduces two major theories in it, efficient default and filling the gap of contract. And as a contrast, it discusses the deontic legal contract theory of Charles Fried in the stress on the moral foundation of contract law and the protection to personal right and points out its importance of demonstration on the moral foundation of contract law to contemporary deontic legal contract theories.The third chapter is analysis on the western legal contract theories in the perspective of right and good. It introduces the conception and effect of right and good of ethics and points out that because of divergence on the end of moral, there are different arrangement on the priority of right and good in deontic and utilitarianism, though both of them belong to the value category. Deontic stresses the priority of right, whereas utilitarianism stresses the priority of good. Then this section continues to introduce the development of deontic and utilitarianism. There are gentle deontic that has absorbed the thought of utilitarianism and the welfare economics based on the economics that has absorbed the thought of utilitarianism.With ethical perspective on the western legal contract theory, this analysis points out that the divergence between the deontic legal contract theories and the economic analysis legal contract theory is the result of the different arrangement of the priority of good and right. In modern western legal contract theories, the divergence of right and good leads to the difference of the cognizance attitude toward the legal doctrine, the arrangement to the relative priority of normative and explanatory functions of the law and the adjudication method of ex ante and ex post.The last chapter is about rethinking the justification of legal contract theories. At first, it analyzes the relation between Rawlsian justice theory and the contract law. With analyses on the conception of basic structure, it points out that there are different explanations about this conception in his text. And only with normative analyses, can we draw a true understanding. After this, with analyses of combing the two justice principles of Rawls with contract law, there is a definite conclusion that the contract law should be included in the basic structure.At last, with rethinking of the value foundation of the contract law, there are several problems should be noticed when constructing Chinese legal contract theory. The function of legal contract theories should emphasize particularly on one aspect, normative or explanatory. The personal freedom is the value of contract and it should be respected and guaranteed. Fill the gaps in Chinese contract law according to the different arrangement on the relative priority of right and good.