Contract and Dispossession

Abstract

In the not so distant past, law students often opened their Contracts casebooks to find a quotation from Sir Henry Maine, “The movement of progressive societies has hitherto been a movement from Status to Contract.” The placement of this quotation at the beginning of a Contracts book sets the tone for the semester or the year, providing a theme that the law professor either embraced or critiqued: the idea that contract is liberatory. This Essay, part of a collection of essays on the same theme, argues that contract law has become an instrument of oppression and dispossession rather than liberation. Having offered a critique, the challenge then is to consider whether it is possible to restore the liberatory potential of contract. The symposium, Post-Marxism, Post-Racialism and Other Fables of the Dispossession, was an invitation to consider the contemporary relevance of Marxist theory. The aspect of Marxist theory referenced in this particular essay is cultural and ethnographic, a methodology suggested by Robert Sullivan’s argument that Marx was anthropological in his epistemology and in his form of argument. Sullivan also argues that the theoretical approach advocated by some anthropologists, a “cultural critique of ourselves,” is Marxist because it is the “modern analogue to Marx’s earlier use of primitive society as both a critique of nineteenth century capitalist economy and as an alternative way of ‘seeing’ reality.” Modern Ethnography, he concludes, “produces its critique . . . by demystifying and denaturalizing cultural texts and ‘reading’ their social meaning.”