Magical Contracts, Numinous Capitalism
Much of US social reality is constructed through contractual rituals, typically thought to be words that create enforceable relations. Such relations are backed by the power of the state and are said to exist on some plane above the empirical. Politically, we speak of a social contract. Economically, contracts lie at the heart of markets, and thus of a commercial society. But just how do individuals use words that construct a suprasensible reality which third parties must respect? Why do some words become ‘binding’, and not others? Such questions have long vexed legal scholars who have been candid, if not comfortable, with the ‘metaphysical’ character of contract law and its complex, and shifting, invocation of a suprasensible social order. It is often said that this social order is founded on the autonomous individual with the power to bind herself (liberalism). Contracts thus not only articulate social relations, they legitimate such relations as something done by and among the parties. As contract law and jurisprudence develop, however, the individual becomes ever more clearly subordinate, i.e. the imaginary of the individual as an autonomous agent who somehow ‘makes’ the contract, who acts upon the social with her words, becomes increasingly difficult to sustain. The magic of contract still works; commercial society still knits itself. But the belief that individuals make the law, rather than the other way around, comes to seem naïve. By extension, the social must still be legitimate (what alternative is there?), but its legitimacy is hardly, if at all, derived from its liberal character. Instead, liberalism emerges as the way law presents itself, and the individual with whom we thought we began emerges as a somewhat disingenuous representation of contemporary law.
David A. Westbrook,
Magical Contracts, Numinous Capitalism,
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/617