Jeffrey Lipshaw (Tulane & Suffolk) has posted The Futility of Justifying Contract Law as Self-Referential System on SSRN. Here is the abstract:
All heretofore proffered justifications of the institution of contract law founder on the shoals of the implicit paradox of systems that attempt to justify their own assumptions. There is a paradox, or antinomy, of the subjective and objective in the resort to contract law – the parties couch first-party wants or needs in justifications that would make it appear that those wants or needs are consistent with objective truth. The quotidian result is that the only objective truth about the positive law of contract is that it exists to resolve private disputes peaceably. The ironic conclusion is a recognition that formalism – the resolution of disputes to some lesser or greater degree without acknowledge of the specific context – is consistent with a view that the law has limited efficacy as a social mechanism. This is because law itself is a model that cannot ultimately contain its own assumptions. It must look outside itself, and when it does it sees a myriad of justifications for particular results, all of which sit apart from what law will never know: how the parties would have resolved the problem had it never been objectified.