Menachem Mautner is the Danielle Rubinstein Professor of Comparative Civil Law and Jurisprudence at the Tel Aviv University, Faculty of Law. He received his LL.B., magna cum laude, and LL.M., summa cum laude, from Tel Aviv University, Faculty of Law. He obtained another LL.M. and a J.S.D. from Yale Law School. Mautner is the author of five books, the editor of five books, and the author of over 70 articles and chapters in books published in Israel, the United States and Britain in the areas of contract law, law and culture, multiculturalism and legal education. He is the Editor-in-Chief of the book series Law, Society and Culture published by the Faculty of Law, Tel Aviv University.
Hans-Georg Gadamer, Wahrheit und Methode (Truth and Method)
Hans-Georg Gadamer's Truth and Method has been recognized by many as one of the greatest books of the twentieth century. Reading it is a mixed experience. On the one hand, the reader finds in it a theoretical elucidation of many thoughts that he or she may have had in the back of their minds. On the other hand, it is a life-changing book because it provides the reader with the self-assurance to adhere to and follow these insights, hitherto intuitively and inexplicitly held.
Gadamer accepts Martin Heidegger's new positioning of hermeneutic activity as a constitutive element of human existence and not merely as a way of acquiring knowledge about the world. We make meaning, Gadamer tells us, every minute of our lives. The process of meaning making takes place both at the mundane, trivial level of trying to understand what goes on around us and at the reflective-theoretical level, namely, when a person attempts to understand the meaning of a literary text, a work of art, an historical event, and so forth. One of Gadamer's major objectives in Truth and Method is to offer an analysis of this process of meaning making.
Gadamer engages in an intellectual struggle with two positions that have enjoyed centrality in Western culture in recent times.
First, Gadamer criticizes the Enlightenment's model of reason, which has dominated the Western mind over the past three centuries. He argues that it is premised on a monological, unidirectional understanding of processes for the acquisition of knowledge, that is, the view that knowledge is attained when an object imprints itself, so to speak, on an “empty“ mind. By contrast, Gadamer argues that processes of meaning making are premised on a “fusion of horizons” (the most famous term coined by Gadamer in the book), namely, the fusion of mind categories with meaning-bearing objects. As our mind categories are the product of the cultures in which we live, Gadamer also implicitly undermines the Enlightenment's great (and hopeless) ambition to set aside any contribution of culture to knowledge-acquisition processes. (The Enlightenment sought to displace culture, which is local and diverse and, therefore, ostensibly untrustworthy, with universal reason.)
Second, Gadamer criticizes the domination exerted by the natural sciences over the humanities and the social sciences. This domination has led to an impoverished understanding of the human condition. By contrast, Gadamer offers the humanities and the social sciences a distinct logic of action premised on giving meaning to objects by applying to them cultural elements that seem to be relevant to understanding them.
Gadamer speaks about our being embedded in tradition. To a great extent, though, his book highlights the importance of culture in meaning-making processes. It may be assumed that had he written the book in recent decades—the years of the “cultural turn” in which scholars in the social sciences, the humanities, and law have begun to employ the concept of culture as an important tool for gaining insights in their research areas— Gadamer would have used the term culture much more often in his book. In any event, in the background of his discussion lurks a theory of culture as constitutive of the minds of human beings as well as of the processes that cultural materials go through—the preservation and application of some and the abandonment of others. These implicit theoretical insights, which lie latent in the book, add to the otherwise abundant riches to be found in it.
P. S. Atiyah, The Rise and Fall of Freedom of Contract
I read Atiyah's monumental book immediately after it was published in 1979. It did not take much reading to realize that it was a classic. Indeed, Atiyah's book is one of the greatest contracts books of the twentieth century.
Atiyah tells the story of the rise of the general theory of contract, at the end of the eighteenth century and over the course of the first half of the nineteenth century, out of a law that had not recognized any general concept of contract but dealt, rather, with particular forms of contracts, such as sales, leases, mortgages, and the like. Atiyah also discusses, though to a much lesser extent, the decline of the general theory of contract over the course of the twentieth century.
According to Atiyah, the typical contract in the period prior to the general theory was not the executory contract, in which the parties exchange promises to be executed by them in the future at the time of the making of the contract. Rather, the typical contract was the partly executed contract—a contract in which one of the parties performs its obligations in parallel to the making of the contract. Therefore, argues Atiyah, the binding force of contracts in that era did not rest on the will of the parties, as manifest in their promises but, rather, on the reliance of the performing party on the promise made by the other party, or on the benefit granted by the performing party to the other party in reliance on that party's promise.
Atiyah presents the law that preceded the general theory as one that scrutinized the contents of contracts by ethical and paternalistic standards. Thus, for instance, under the “fair price theory,” a court was authorized to annul a contract premised on an unfair price.
The greatness of Atiyah's book lies in its combination of detailed analysis of contract doctrine with a discussion of the socioeconomic conditions and the prevailing ideas during the decades when common law judges and scholars made the great intellectual transition that gave birth to the general theory. With regard to the socioeconomic conditions, Atiyah focuses on the demise of communal life and the rise of atomistic and individualistic social relations in the course of the industrial revolution; on the accelerated pace of the division of labor that took shape in the course of that revolution; and on the rise of the contract to become a central instrument of interpersonal relations.
In the realm of ideas, Atiyah focuses on Adam Smith's 1776 The Wealth of Nations, which had enjoyed immediate success; on the classical economists who were active in the decades following Smith; and on the utilitarian thought of the closing decades of the eighteenth and the first half of the nineteenth century. All of these, argues Atiyah, created a view of the individual as a rational, self-interested utility maximizer whose choices cannot be judged by any other person. Following Smith, self-interested action was also held to be morally worthy, for the reason that social welfare was adjudged to accumulate the more particular contractual transactions of self-interested parties were made.
The richness of Atiyah's discussion and the power of his insights make his book a rare intellectual achievement. It casts light on some of the major processes that have made the modern era what it is. One can trace in it some of the processes that have made “economic man” such a mighty figure in the closing decades of the twentieth century, the years during which neoliberalism—premised on the extension of the economic view of the market to as many spheres of life as possible—has become the dominant socioeconomic ideology in many parts of the world.
Grant Gilmore, The Death of Contract
Grant Gilmore's book discusses the rise and fall of the general theory of contract in U.S. contract law. Gilmore locates the rise of the theory in the closing decades of the nineteenth and the early decades of the twentieth century. The protagonists of his plot are Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston.
Gilmore's book is only 103 pages long, with 39 pages of endnotes, all in an exceptionally small format. It is more of an essay than a historical study. But what a brilliant essay it is! One cannot avoid paraphrasing Winston Churchill: never has so much been written subsequently regarding so few pages. Hundreds of law review articles have been published discussing the book's theses in the three-and-a-half decades since its publication.
Perhaps Gilmore's greatest insight is that, in the second half of the twentieth century, “contract” was being reabsorbed into the mainstream of “tort,” so that we may as well consider thinking about these two legal branches in terms of “contort.”
The book is written from a bird’s-eye view—it is an attempt to identify the major trends in the development of American contract law since the second half of the nineteenth century. And it manifests the great advantages of this genre when executed by a great thinker, among which are, first and foremost, the identification and mapping of the main processes. As reality is so often chaotic and complex, I always find myself grateful and indebted to authors such as Gilmore (and Atiyah) who attempt to instill some order, sense, and meaning into a world composed of an infinite number of signs. (The shortcomings of this approach are obvious as well, mainly, that all of this is often done with too broad a brush).
Ian Macneil, “The Many Futures of Contract”
Macneil's article is, to my mind, the most lasting contribution to contract law scholarship in the second half of the twentieth century. Macneil persuasively showed that the category of contract in the common law is too restricted; it envisions only one type of contractual transaction, the discrete contract in which self-regarding parties enter into impersonal relations. There are many contracts, however, that substantially deviate from this paradigmatic model, argued Macneil. These contracts are relational in nature, and what characterizes them is the central role played by the personalities of the parties to them. Thus, each party expects personal enrichment out of the contract; the personality of the other party is a crucial reason for each party's entering into the contract; the personalities of the parties play an important role in the ongoing performance of the contract. Also, relational contracts are regularly being rewritten even while being performed. Macneil argued, however, that most contracts involve both discrete and relational elements.
Macneil opened up the door to a richer and subtler understanding of the world of contract. Max Weber, Henry Maine, and Ferdinand Tonnies have all pointed out the transition of contracts in modernity from social and cultural embeddedness to serving as market instruments in the hands of alienated, self-regarding strangers. Macneil showed that, even in modernity, the sociocultural element in contracting is dense. Put differently, Macneil challenged the economists’ view of the market by making room for sociologists’ competing view of it as being populated by market actors involved in a rich web of ongoing personal relations and often acting in solidarity with each other, even against their immediate self-interest. Macneil's analysis focuses on elements of cooperation and solidarity in the relations of contracting parties and underlines the importance of culture, as opposed to the explicitly agreed-upon stipulations of the parties, in determining the actualities of contracts. Macneil's analysis also clears the way for a more complex understanding of the role played by power in contractual relations, namely, the power exerted not in the negotiation phase (the traditional emphasis of contract law) but, rather, in the course of ongoing contractual relations.
The common law is premised on the Aristotelian practical-wisdom decision-making model. Therefore, in the spirit of a theme put forward by Karl Llewellyn, one of the implications of Macneil's argument is that if we apply the contract law of discrete transactions to relational contracts, faulty normative conclusions are the inevitable outcome. On a more general level, Macneil points out one of the major problems of modern contract law (the law of the general theory of contract), namely, the fact that it is premised on applying one uniform set of legal norms to a highly varied universe of contractual transactions and relations.
Charles Taylor, Multiculturalism and “The Politics of Recognition”
Charles Taylor's book is great for two reasons.
First, it locates the newly ascendant discourses of identity and multiculturalism in the context of a long history of ideas about the self. Taylor begins his intellectual tour in the era of honor, in which it was regarded as most natural that the fate of individuals should be determined at birth, so that the social group into which a person was born determined much of what subsequently transpired in his or her life.
Then the notion of authenticity emerged on the scene. In some strong passages, Taylor criticizes the ideal of authenticity; it ignores the fact that human life is dialogical, through and through. The genesis of the human mind is not monological, not something that each person accomplishes on his or her own, but a dialogical process. The great contribution of the ideal of authenticity, though, was to undermine the honor system and thus pave the way for the great historical era of dignity in which all individuals in the world are perceived as entitled to certain treatment, and as shielded by a series of human rights, simply because of their humanity.
Finally, from this era of universal equality emerged the politics of recognition (or identity or multiculturalism), in which groups of individuals that share the same identity traits or the same cultural affiliation emphasize their uniqueness and claim special treatment on the grounds of their difference. By challenging the homogenizing and assimilating ideals of the nation-state, the politics of recognition accentuates dissimilarities between groups. It does so, however, for the sake of equality; blind application of the same set of norms to everybody breeds inequality. Thus, the notion of dignity has been redefined to mean recognition of dissimilarities. In some ways, then, the politics of recognition brings us back to the premodern era of honor in which dissimilarities were emphasized, and there was a connection between diversity of belonging and the diversity of people's fates.
Second, Taylor identifies some of the normative problems that have arisen in the new era in which claims are made for the recognition of difference. He identifies two possible claims of recognition: recognition of difference and recognition of the equal worth of different cultures. In a few unforgettable passages, Taylor argues for a presumption that all human cultures that have animated entire societies over some considerable length of time have something important to say to all human beings. It would take a supreme arrogance to discount this possibility a priori, he writes; we need to maintain a sense of our own limited part in the whole human story. Taylor applies Gadamer's notion of a “fusion of horizons,” originally conceived in the context of the “vertical” attempt to give meaning to the past, to the “horizontal” enterprise of cross-cultural dialogue. Taylor thus conflates Gadamer with Clifford Geertz. However, Taylor unequivocally rejects the stronger assumption that all cultures should be deemed to be of equal worth.
Taylor also implicitly recognizes that it would be wrong to take a judgmental stance toward cultures in their entirety (“French culture,” “ultra-Orthodox Jewish culture,” “Muslim culture,” and so forth). Rather, every culture is composed of a huge amount of categories and practices, and when we normatively appraise cultures, we need to deal with specific cultural practices and elements. Therefore, it may be the case that we find elements deserving of our admiration and respect in a foreign culture, even if they are accompanied by much that we abhor and reject. This is an appropriate attitude to take when it comes to evaluating our own liberal cultures, as well.
Pierre Bourdieu's sociology of culture
Pierre Bourdieu's sociology of culture provides a rich and sagacious intellectual apparatus for making sense of the processes whereby cultural products are produced, disseminated, and consumed. One can find in it a combination of themes taken from Max Weber, Karl Marx, Émile Durkheim, and Marcel Mauss, among others. Bourdieu was an extraordinarily prolific author who wrote over thirty books and many hundreds of articles.
Bourdieu does more than provide us with the means for a richer and highly insightful understanding of social and cultural processes. To read his best-known work, Distinction: A Social Critique of the Judgment of Taste, is a life-changing experience: going to the opera, watching a game of golf, consuming food, entering a university class, and many other daily activities are no longer the sameas they were before.
Karl Marx and Fredrick Engels, The German Ideology; Antonio Gramsci, Selections from the Prison Notebooks
It would be a truism to say that it is hard to think of a book that contains as many ideas that have had as profound an impact on the way we think as does The German Ideology. The following are just a representative sample: human consciousness is the product of the material conditions in which human beings function. Civil society, the place of the relations of production (which are social relations), is the arena wherein history is made. The institutions of the state, including its legal institutions, are controlled by the dominant social class, and the same applies to culture, ideology, morality, and political theory. The dominant class is, at any given time, the one that determines the dominant ideas; material power is translated into intellectual power. When particular interests manage to control the state, they tend to present themselves as the general interests of the citizenry in its entirety.
Antonio Gramsci—whose life story, from his birth in Sardinia to his death in prison, could have been the basis of a great drama—is representative of the cultural turn in twentieth-century Marxist thought. The Prison Notebooks is a great triumph of the human spirit over those who would attempt to crush it. Needless to say, this is not a book that was completed by its author and submitted to a publisher. These are the thousands of pages by means of which Gramsci kept his sanity while incarcerated in a Fascist prison. Written under the most incredible conditions, it has nonetheless become one of the most influential books of the second half of the twentieth century.
If there is one thing that has made the book famous it is its reformulation(s) of the Marxist concept of hegemony. There are several such in the book, but it seems to me that the following is the one that best captures Gramsci's understanding: a hegemony can be said to exist when one social group manages to control three foci of power, namely, the central institutions of the state, the central institutions of civil society, and the culture– i.e., the hegemonic group manages to widely (but never completely)disseminate among the citizens of a state its own understandings of “the basic rules of the game” of politics and economics as well as a dominant historical narrative. Put differently, the hegemonic group is able to disseminate its fundamental convictions regarding the state's political regime and culture, its economic regime, and the nation's collective memory. What all of this means is that control over culture is an important key to social control. Also, Gramsci's concept of hegemony is clearly “European” and “non-American”; it assumes a “historical bloc,” a coalition, which is constantly involved in an internal “give and take” of material and symbolic resources.
I have found Gramsci's concept of hegemony particularly helpful in the Israeli context. Over a short span of time in the course of the 1980s, Israel's Supreme Court introduced a series of far-reaching changes into its jurisprudence: the Court adopted highly activist doctrines enabling it to sweepingly intervene in decisions undertaken by other branches of the state; it replaced its traditional formalist style of reasoning with a value-laden approach that openly exposed the normative meaning and the distributive implications of the law; and, instead of its traditional self-perception as a professional institution whose function is to resolve disputes, it adopted a view of itself as a political institution that, side by side with the Knesset (Israel's parliament), may take part in normative and distributive decisions. These changes have been noted by many observers.
For me, the changes in the Court's jurisprudence should be understood in the context of the great historical process that began to unfold in Israel in the second half of the 1970s: the decline of the political, social, and cultural hegemony of the Labor movement and the renewal of the “war of cultures” in Israel, that is, the struggle over the country's future cultural orientation. The group identified with Western, secular, liberal values lost much of its power in Israeli politics and culture and found itself faced with an alternative cultural option for the country, founded on the Halakhah and traditional Jewish heritage. In these circumstances, this group shifted much of its political action to the Supreme Court, to which it submitted many dozens of petitions against the government and the Knesset. The Court, which since the establishment of the State of Israel has been the state institution most closely identified with liberal values, collaborated with the group by devising wholly new legal doctrines, all meant to subject the activities of the two other branches to the Court's supervision and, thereby, to the values and worldview of the formerly hegemonic liberal group.
Yaakov Shabtai, Past Continuous
Yaakov Shabtai (1934–1981) was an Israeli novelist, playwright, and translator. He is best known for his novel Zikhron Devarim (1977), published in English in 1985 as Past Continuous. Shabtai passed away of a heart attack at the age of forty-seven, just four years after the publication of the Hebrew version of his book and four years before the publication of the book's English translation. It is certainly one of the two or three greatest pieces of literature published in modern Hebrew. It received international acclaim, and some think it is one of the greatest pieces of literature published in the second half of the twentieth century. Past Continuous is Shabtai's first and only novel. In addition to several plays, he also authored a collection of short stories. Fragments of a second unfinished novel of his were published posthumously by his widow.
Past Continuous depicts the lives of three middle-aged male friends living in Tel Aviv in the 1970s, Goldman, Caesar, and Israel, and their many relatives, lovers, and acquaintances. There is no structural plot.
The book is the consummate literary expression of the emptiness and meaninglessness experienced by the heirs of the Labor-led, hegemonic secular group with the decline of the hegemony's collectivist, nation-building value system. That value system had considered the good life to consist of contributing to the national project; it was overtaken, however, by an individualistic worldview that sees life as a project of personal self-realization. On the one hand, Goldman's father, a representative of the former collectivist hegemony, is depicted as a person who “knew what was right and good, not only for himself but also for others, and could not tolerate error or sin, and for him every error … was a sin.” On the other hand, Goldman himself, representing the post-hegemonic generation, moves from an interest in Judaism to an interest in psychology, and then to an interest in history, sociology, philosophy, Taoism, and astronomy, all in order “to help him save himself from the difficulties and perplexities of life and attain the possibility of living in freedom and serenity in a world which possessed some kind of unity and coherence.” However, Goldman, whom Shabtai depicts, toward the end of the novel, as someone for whom “life in its familiar, day-to-day sense … lost all direction,” fails in his serial attempts to find meaning and ends up taking his own life.
As noted by many critics, Past Continuous is not an easy read. The Hebrew version of the work is written as almost a single paragraph that extends for 282 pages, filled with 137 protagonists and their doings during a period of over 40 years. In the English version, the text has been broken up into paragraphs. Still, if I had to recommend one great piece of Israeli prose, this is it.
The drama of Hanoch Levin
Hanoch Levin (1943–1999) was an Israeli dramatist. He was also a theater director, an author, and a poet. Levin wrote over sixty plays. Many of them were staged and directed by him. He is one of the greatest playwrights of the twentieth century. His drama is still being translated and staged in more places in the world year after year. It is just a matter of time until Levin gains the place he deserves in twentieth-century world drama.
At the center of Levin's plays stands the entrapped individual. Levin's protagonists are entrapped in three systems, unable ever to find a way out. First, they are entrapped in their biology. They suffer from disease. They endure bodily pains. They need nutrition. They are tormented by unsatisfied sexual drives. Eventually they die. Second, Levin's protagonists are entrapped in hierarchical social relations. In Levin's plays, there are always superiors and inferiors, those who tell others what to do and those who do what they are told to do, those who humiliate and those who are humiliated. The trap of hierarchical social relations is an immutable human condition, according to Levin; nobody can emancipate himself or herself from this human condition. That is the nature of things, and it is futile and hopeless to think that it can be otherwise. Third, Levin's protagonists are entrapped in the culture into which they were born. Through the cultural distributive means of capitalism (first and foremost, movies, the media, and advertising), culture writes for each person a (bourgeois) “success story,” and it is every individual's destiny to strive for the utmost realization of that story in the course of his or her life. Alas, however, only few manage to do so. Most human beings are utter failures in terms of the cultural story written for them.
Moreover, Levin's protagonists are keenly aware of their failures and of the fact that there are some unique individuals that have managed to successfully realize the story written for them by their culture: those who study at universities, accumulate fortunes, gain the sexual partnership of beautiful women, travel abroad, dress well, and eat in fancy restaurants. The awareness of the “losers” that the “success stories” do exist is a constant source of emotional pain, paralysis, and depression. Levin's protagonists always judge their fate in comparison to those who have made it, and they, therefore, feel humiliated and lacking in initiative.
Anybody who views or reads Levin's drama is sure to become less confident of the status of some key notions of the modern worldview, such as freewill and autonomy, and will realize the extent to which these notions should be understood in the context of the severe constraints under which most human beings live.
The drama of Harold Pinter and Edward Albee
Viewing or reading the plays of Harold Pinter (The Birthday Party, The Homecoming, Betrayal, among many others) and Edward Albee (Who's Afraid of Virginia Woolf?, The Zoo Story, among many others) is a mesmerizing experience. The most realistic settings, social relations, and texts come across as expressing a reality that lacks cohesion, sense and meaning, any rational explanation for the way people act, security and predictability or any well-defined belief and value systems. This is a reality of wonder, incomprehension, mystery, and an inability to truly understand the forces that motivate people. This is a reality in which the human condition is one of loneliness and the inability to establish and maintain lasting, meaningful contacts. It is a frightening reality, one whose roots lie in secularism, Nietzsche, Kafka, Freud, and instrumental rationality.
Some years after I first encountered the drama of Pinter and Albee, I began studying law. I immediately rejected any scientific explanations of the decision-making processes of human beings, including in the law, such as the proceduralism of legal formalism and the new formalism of economic analysis of law. I was drawn to the legal realist depiction of decision making in the law as constrained yet open-ended. I developed a strong conviction that we cannot fully and rationally understand why judges act the way they do in certain cases, and then differently in others. I developed a strong conviction that you can clothe almost any move or outcome in the law with plausible arguments. Years later it dawned on me that the roots of all of this lay in my encounter with Pinter and Albee.