Ian Roderick Macneil

Professor Ian Roderick Macneil, The Macneil of Barra, Chief of the Clan MacNeil and of that Ilk, Baron of Barra. Born 20 June 1929.

Professor Macneil is John Henry Wigmore Professor Emeritus of Law at Northwestern University, Chicago. He lives now in Edinburgh and is highly active in the affairs of the Clan Macneil of which he is Chief. He was educated at the University of Vermont (BA 1950, majoring in Sociology), and Harvard (LLB, 1955) where he studied contracts under the great theorist Lon Fuller. He served as an infantry Lieutenant in the US Army from 1951-1953 and remained in the reserve until 1969, when he was honourably discharged with the rank of Major. He is married to Nancy (nee Wilson) and they have had three sons (one deceased) and a daughter. [See further, Who’s Who (A&C Black: London).]

His legal career began as a Clerk to the US Court of Appeals (1955-1956), followed by practising law in Concord, New Hampshire until 1959, when he became Assistant Professor of Law at Cornell University, advancing to Associate Professor in 1962 and then straight to a full Professorship. In 1972 he became Professor of Law at the University of Virginia and in 1980 Wigmore Professor at Northwestern University. He spent some time at the University of East Africa at Dar es Salaam (now the University of Dar es Salaam) as Visiting Professor in 1965-1967, part of a highly distinguished tradition at Dar es Salaam which also hosted (Sir) Patrick Atiyah and William Twining (who went on to establish the law school at the University of Warwick).

Macneil's Scholarship

Professor Macneil is one of the world’s leading and best known scholars in the field of contract law, and is particularly associated (along with Professor Stewart Macaulay) with the invention of “relational contract theory”. This theory had its first outing at the Association of American Law Professors’ annual conference in late 1967 and was first alluded to in print in Macneil’s article “Whither Contracts?” in 1969. [(1969) 21 Journal of Legal Education 403.] However, the first really substantial articles laying down the foundations of the theory appeared in 1974. “Restatement (Second) of Contracts and Presentiation” [(1974) 60 Virginia Law Review 589] and “The Many Futures of Contracts”. [(1974) 47 Southern California Law Review 691.] He developed the theory further in “Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical, and Relational Contract Law”, [(1978) 72 Northwestern University Law Review 854.] and in his famous monograph The New Social Contract. [(Yale UP: New Haven, Conn., 1980).] He wrote a good deal more on relational contracts after 1980, mainly concerned with explaining and defending the theory, which has been much misunderstood by academic commentators, whether critical of or in favour of relational theory, but the outlines and much of the detail of the theory were settled by 1980.

In 2000 Macneil renamed his theory “essential contract theory” in order to distinguish it from other possible versions of relational contract theory. [“Contracting Worlds and Essential Contract Theory” (2000) 9 Social & Legal Studies 431.] Further interesting explanation has been given by Macneil in “Reflections on Relational Contract Theory after a Neo-classical Seminar”. [(H. Collins, D. Campbell and J. Wightman (Eds) The Implicit Dimensions of Contract (Hart: Oxford, 2003).]

Reception

A symposium on relational contract theory was held at Northwestern University in 1999, with papers given by a number of very distinguished American contract scholars including Stewart Macaulay, [“Relational Contracts Floating on a Sea of Custom? Thoughts about the Ideas of Ian Macneil and Lisa Bernstein” (2000) 94 Northwestern University Law Review 775.] Melvin Eisenberg, [“Why There is No Law of Relational Contracts” (2000) 94 Northwestern University Law Review 805.] Jay Feinman, [“Relational Contract Theory in Context” (2000) 94 Northwestern University Law Review 737.] Eric Posner, [“A Theory of Contract Law Under Conditions of Radical Judicial Error” (2000) 94 Northwestern University Law Review 749.] Robert E. Scott, [“The Case for Formalism in Relational Contract” 94 Northwestern University Law Review 847.] and Richard Speidel. [“The Characteristics and Challenges of Relational Contracts” (2000) 94 Northwestern University Law Review 823.]

Macneil’s work is often considered inaccessible and difficult to read. [See J.M. Feinman, “The Reception of Ian Macneil’s Work on Contract in the USA” in D. Campbell (Ed) The Relational Theory of Contract: Selected Works of Ian Macneil (Sweet & Maxwell: London, 2001).] And Macneil himself has expressed some disappointment at the reception of the work among legal scholars: “I have now had over a decade to accept that there had never been any race to a relational theory of contract, nor have the succeeding years seen either widespread acceptance of (or indeed much challenge to) my particular theory or the development of other relational theories.” [I.R. Macneil “Reflections on Relational Contract” (1985) 141 Journal of Institutional and Theoretical Economics 541.] However, the Northwestern symposium and other more recent work goes some way to correcting that omission. In particular, David Campbell [See David Campbell (legal academic)] has published an edited collection of Macneil’s relational contract theory work (albeit that in the interests of clarity and keeping the length down, Macneil’s footnotes are omitted, which is a shame to an extent, in that the footnotes contained not just reference material but a sort of running commentary and parallel discussion). [D. Campbell (Ed) The Relational Theory of Contract: Selected Works of Ian Macneil (Sweet & Maxwell: London, 2001).] Macneil’s work in particular has also been discussed by Richard Austen-Baker, who relates Macneil’s system of norms (see further below) to English contract law doctrine, [R. Austen-Baker, “A Relational Law of Contract?” (2004) 20 Journal of Contract Law 125.] and used Macneil’s theory to discuss the need or otherwise of further regulation of consumer contracts. [R. Austen-Baker, “Consumer-Supplier Relations, Regulation and Essential Contract Theory” (2008) 24 Journal of Contract Law 60.]

Relational contract theory has probably wider use and acceptance (though often misunderstood) in management scholarship, and there is a considerable volume of management scholarly literature which refers to and utilises Macneil’s insights.

Essential Contract Theory

Macneil’s theory posits that the traditional approach of doctrinal contract law in the common law countries, which he calls “classical” and “neoclassical”, which concentrates on “the deal” at its time of making, and treats individual contracts as discrete entities, is an inadequate and inaccurate tool for the study of contracts. [“Restatement (Second) of Contracts and Presentiation”, above.] He argues that all contracts are in fact not discrete at all but belong in the context of complex webs of exchange relations. [ibid and “The Many Futures of Contract”, above.] Contract relations fall along a spectrum from the highly relational (eg, long-term employment contracts) to the “as if discrete”, largely transactionalized relation (eg, spot purchases of commodities). All relations, though, are connected with and belong within a broader social context, with which successful relations must be harmonized. It is possible to draw axes through many facets of contractual relations, indicating the likely features of such facets in relations falling at different points along the spectrum.

What is particularly distinctive about his approach is his postulation of a number of “norms in a positivist sense”, of which 10 common contract norms apply to all contracts: (i) role integrity; (ii) reciprocity (or ‘mutuality’); (iii) implementation of planning; (iv) effectuation of consent; (v) flexibility; (vi) contractual solidarity; (vii) the ‘linking norms’ (restitution, reliance and expectation interests); (viii) the power norm (creation and restraint of power); (ix) propriety of means; and (x) harmonization with the social matrix. [See “Contracting Worlds and Essential Contract Theory” (2000) 9 Social & Legal Studies 431.] By “norms in a positivist sense” Macneil means that they are norms-in-fact, that is to say that they are observable in operation, to distinguish them from norms in the sense of normative as opposed to positive economics. The extent to which a particular exchange relation is in harmony with the norms is likely to influence the success of the relation in terms of its longevity (where appropriate) and the ability of the parties to gain the full range of benefits that the exchange can potentially offer. The extent to which the actual doctrinal law harmonizes with these norms can arguably determine the usefulness of legal tools and interventions in exchange relations, but it is a complicated question.

References