'A Paradigm Shift in Common Law Theory'

The intersection of theory, practice, and history of law has always been a captivating subject. Few individuals embody this multifaceted approach as effectively as Professor Shivprasad Swaminathan, Dean-designate of the upcoming Shiv Nadar School of Law at the Shiv Nadar University, Chennai, India. Widely regarded as one of the foremost legal scholars of his generation in India, he has made significant contributions to the fields of legal theory and contract law. He's currently on a Humboldt Fellowship at our Institute, where he's studying the theory and method in the common law. 

We had the privilege to sit down with Prof Swaminathan during his visit to the Institute and explore his thoughts on the state of private law in India, the need for a new approach to common law theory, and the potential of historical perspectives in modern jurisprudence.

Prof Swaminathan, what is your view on the status and function of private law in India?

Traditionally, private law scholarship has not thrived in India anywhere near as well as public law scholarship has. Scholarly articles on Indian private law in leading peer-reviewed journals remain rare. Scholarship that casts a critical glance at the historical or conceptual foundations of Indian private law or sheds new light on contemporary problems is rarer still. That being said, there are signs that change is afoot, especially in the area of contract law. Over the last decade, projects like the Studies in the Contract Laws of Asia (the pioneering series edited by Prof Mindy Chen Wishart and Prof Stefan Vogenauer) and Foundations of Indian Contract Law to be published by OUP next year (which I am co-editing with Umakanth Varottil, Niranjan Venkatesan and KV. Krishnaprasad), which bring numerous scholars reflecting on different aspects of contract law and building on each other‘s work, has catalysed scholarship in this area. Some of the insights thrown up by the work of scholars participating in these projects challenges decades-old orthodoxy and holds the potential to accelerate reform in many areas. It will not take long fore the fruits of these insights to percolate to judicial decisions and legal practice. Contract law in India is finally beginning to attract young scholars and an intellectual community is forming around it.

One is hopeful that this trend will continue to solidify in the coming years and also rub off on other areas of private law such as tort, property, unjust enrichment etc. - areas that have been more or less moribund and in dire need of scholarly attention.

Do you think there is a need for a new theory of the common law? What would it need to look like?

Theorising about the common law has progressed geometrically in the last four decades in both senses of ‘geometric progression’. For one, there is the sheer proliferation of such accounts in a number of areas of common law. For another, these theories are typically modelled along Euclidian lines in that they seek to logically deduce entire areas of the common law (e.g. contract, tort and the like) from one or a small number of apex principles as is done in Euclidian geometry. The methodological assumptions underlying this form of theorising have not been probed hard enough. It is my claim that this form of theory construction is incongruous with the working of the common law method and the model of normativity underlying it.

In short, this form of theorising is ‘monocentric’. Monocentric theorising assumes that all knowledge required to arrive at a decision in a token case is capable of being contained in a synoptic form in a “theory”. While the functioning of the common law is polycentric (in Michael Polanyi’s sense of the term, not Lon Fuller’s). A polycentric system of decision-making — such as the common law — is one with many decision-makers acting as independent centres (i.e. without any common blueprint or master plan). These decision-makers play it by ear. They ‘mutually adjust’ their decisions with other decision-makers by learning to anticipate (through tacit knowledge or know-how) what will pass muster with the legal community. While the monocentric model admits the feasibility of an a priori anticipation — by one mind — of a whole class of problems, the polycentric mode of decision-making presupposes that knowledge required to make decisions is necessarily scattered across agents, each of whom has only truncated knowledge. The function of polycentric decision-making is that of harnessing this scattered knowledge (‘collective rationality’, as Gerald Postema puts it) among a multitude of agents via mutual adjustment in a succession of cases between decision-makers engaged in real time decision-making.

Older jurisprudential theories seem to pay little attention to the actual law. Do you think this lack can be overcome?

So irresistible is the allure of monocentric theory here that even those who demolish one monocentric theory might see no choice but to replace it with another — much like the apocryphal tale in which the physicist Niels Bohr is believed to have justified having a horseshoe in his office, despite frowning upon such superstition, because he was told, ‘it works — even if you don’t believe in it’. Theorists are too quick to discover new apex principles or repackage old ones as new.

A polycentric approach to theory construction proceeds along completely different lines. It eschews first principles altogether; instead, it mimics the common law’s method. It does that by trying to get to the heart of the ‘tacit knowledge’ possessed by common lawyers and judges. By this, I mean elements which pull judicial intuitions in their direction in specific areas of law, but are rarely expressly spelt out in the decisions; seasoned lawyers do, nevertheless, manage to read them back from cases and rely on them as gauges for anticipating judicial behaviour and advising clients. This requires getting into the weeds of the case law, as it were, to a far greater extent that theorists tend to feel comfortable with. What this also means is that theory cannot transact with ‘universal’, ‘timeless’ or ‘abstract’ categories. This approach to theory necessarily builds on practice. When we understand theory construction in this way, we certainly find scholars whose work broadly fits this description, even if they themselves do not explicitly classified them as falling under this rubric.

But might not one complain that this doesn’t sound much like theory at all? How would such a notion of theory work ?

This approach seeks to simulate the common lawyer’s mind in identifying factors which have resonated with the court and are likely to do so in a future case. What we will get is likely to be nothing as grand (or grandiose) as monocentric theory, but accounts rich in detail of case law, focusing on specific doctrinal accounts of law (e.g. formation, undue influence, mistake, strict liability etc.) will, at best, offer pockets of coherence.

Now, could there be a valid objection to calling this theory? It all depends on what gets called ‘theory’. The etymological roots of the term (theoria in Greek) connote something as anodyne as ‘seeing’ something (this is also where ‘theatre’ comes from). In that sense, the role of theory is to show us something that is not obvious from a bare observation of the phenomenon being theorised. Theory, in other words, must in some sense elucidate or simplify something that is more complex prior to its intervention. But why assume that the answer must always be reducible to a simple apex principle? What if the complexity of the underlying phenomenon resists such reduction and requires getting into the weeds of several other complex factors? In other words, there is no conceptual bar to this kind of theory. It is just that given the success of monocentric theory, there tends to be the unwarranted assumption that it is the only game in town. The only thing that succeeds here is success. Any theory is tinsel qua theory if does not have predictive power. And my claim is that polycentric theory does a far superior job to monocentric theory when it comes to this — since it offers a direct method of tracking tacit knowledge used by the common lawyer in solving cases.

What insights could your stay at our Institute contribute to researchers working on various subjects in private law, legal history and legal theory?

When the Chair of Jurisprudence was established at Corpus Christi College Oxford in 1869, it was envisaged that the Professor of Jurisprudence shall lecture ‘on the history of laws and comparative jurisprudence’ of different nations. The job description fit the work of its first incumbent, Sir Henry Maine, his successor, Sir Frederick Pollock, and his successor, Sir Paul Vinogradoff. Fast forward one century and one finds that history is no longer integral to the kind jurisprudence coming out of Oxford. The brief genealogy of the use of history in the work of incumbents of the Oxford chair is also by and large a dioramic representation of the extent to which legal history has moved away from the dominant stream of legal theory and general jurisprudence in the Anglophone world.

I, for one, think the world of legal theory will be richer if we can find ways of yoking history back to jurisprudence by renewing the neglected dialogue between the two. Now, legal theorists are not expected to be legal historians — and given their training, they are unlikely to produce original historical insights. Nevertheless, history can very helpfully figure in the spirit of what Oliver Wendell Holmes Jr described in his work The Common Law as a ‘spicilège’ or a gleaning — philosophical gleanings from the historical literature calculated to shed light (theoria again) on significant themes surrounding the issues under examination. It is here that the Max Planck Institute for Legal History and Legal Theory is unique in as much as it is a space where there is a robust dialogue between legal history and legal theory. Indeed, this is amply borne out by the kind of conversations and exchange of ideas I have been able to have with other members of the Institute during the time I have spent here