Contract Law in a Just Society

Theoretical Inquiries in Law 20 (2):411-432 (2019)
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Abstract

This Article challenges Hanoch Dagan and Michael Heller’s choice theory of contract, according to which contract law is autonomy-enhancing. I make three points: first, the choice theory of contract cannot clarify the critical normative distinction between enforceable formal contracts and unenforceable informal promises. Second, I develop the roads/contract-types analogy: instead of promoting individuals’ autonomy and enhancing their choice among different projects, most contract types are justified by the preexisting preferences of citizens. Finally, I outline a teleological justification of contract law that is different from that propounded by Dagan and Heller. On this view, contract law should remain neutral as to which conception of the good is commendable and provide individuals with the means of shaping and pursuing a conception of a good life.

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