A Comment on Dean Clark

Abstract

Dean Clark's wideranging article takes as its point of departure a problem in corporate law—or more precisely, in corporate law scholarship—but this problem is for him simply an occasion to discuss a broader set of questions concerning the nature and comparative advantages of three different sorts of norms, norms that in Dean Clark's view play a legitimate role in law, and in many other areas of social life as well. His article is thus not centrally about corporate law, or even the law in general. Its real subject is an even wider one: the normative ordering of human conduct in all its different facets. It is clear that Dean Clark's main interest is in this larger topic, and I shall treat his article as an invitation to offer some similarly broad comments of my own. Dean Clark's target is the so-called "contractual" theory of law, a theory that has in recent years become particularly prominent in corporate law scholarship (though of course not only there). The strengths and weaknesses of the contractual theory have been spotlighted in the debate, to which the articles in this Symposium are devoted, over the role of mandatory rules in corporate law, and the wisdom of permitting parties to opt out of requirements that have traditionally been regarded as compulsory. Because Dean Clark's argument is directed against the contractual theory of law, it will help, I think, to begin by asking what it is that proponents of this theory hold.