ABSTRACT
Contract law emerged as a distinct legal field in the US toward the end of the nineteenth century during a period marked by US settler colonization of indigenous populations through Westward expansion and a continuation of British colonialism. US courts adopted the objective theory to evaluate and interpret contracts using the reasonable person standard, which constitutes a fictional person with no cultural, political, or class characteristics. Legal educators viewed contract law as an ideal juridical vehicle through which to embed European values of modernity, rationality, and objectivity into the law, which normalized the Western man as the reasonable person, discounted the experiences of colonized persons, and reinforced the stated civilizing mission of colonialism, which viewed colonialists as rational and the subjugated as inferior. Decoloniality seeks to untangle the production of knowledge from a Eurocentric framework and dismantle structures of oppression that subjugate subaltern communities.
This chapter provides a brief overview of the objective theory and reasonable person standard and its link to coloniality and then, as the main focus of this chapter, discusses three methods to incorporate a decolonial perspective into contracts. The first method introduces first-year law students to decolonial theory and critical race theory. The second method concretizes this theoretical exploration through a reflection and writing assignment called Praxis Post. The third method highlights the importance of contextualizing and deconstructing contract cases and does so with the popular contract case Raffles v. Wichelhaus (“Peerless ships”) (1864), which is promoted as the case that exemplified the law’s shift from a subjectivist approach to the objective theory. Finally, through contemporary cases, this method shows how explicitly and implicitly Eurocentrism and coloniality are extended in the doctrine to the present day.
