Enhancing (and advancing) human autonomy has always played a part in the role of contracts in society. Years ago autonomy was one of the three legs of the stool of the social practice of contracting I described in Mission Possible (download here or here). Contract law, at least as I see it, is a second-order phenomenon designed with the ambitions of both commutative justice (here) and corrective justice (here) in mind
Contract law theories are the particular province of legal academics. But they are not on that account of no importance. Only the most pedestrian would assert that there's no place for wondering about the why of what is, especially when "what is"--contract law--is backed by the coercive power of the State.
Nate Oman is among the most insightful of younger generation of contract scholars and theorists. My posts here, here, and here are some of examples of what has intrigued me. Now you can add his Contract Law and the Liberalism of Fear (download here) to the list. Oman writes clearly so I won't belabor his argument except to report that it follows on his Markets as a Moral Foundation for Contract Law (observations here) in which the softening virtues of the market, rather than the pretensions of expanding human autonomy, are at the core of contract law. And taking the matter one step further, the concept of contract cannot be at the center of the contemporary liberal project. If autonomy doesn't justify contract law, a fortiori it can't justify a social contractarian vision of political ordering.
But read Contract Law and the Liberalism of Fear for yourself and let me know what you think.
Contract law theories are the particular province of legal academics. But they are not on that account of no importance. Only the most pedestrian would assert that there's no place for wondering about the why of what is, especially when "what is"--contract law--is backed by the coercive power of the State.
Nate Oman is among the most insightful of younger generation of contract scholars and theorists. My posts here, here, and here are some of examples of what has intrigued me. Now you can add his Contract Law and the Liberalism of Fear (download here) to the list. Oman writes clearly so I won't belabor his argument except to report that it follows on his Markets as a Moral Foundation for Contract Law (observations here) in which the softening virtues of the market, rather than the pretensions of expanding human autonomy, are at the core of contract law. And taking the matter one step further, the concept of contract cannot be at the center of the contemporary liberal project. If autonomy doesn't justify contract law, a fortiori it can't justify a social contractarian vision of political ordering.
But read Contract Law and the Liberalism of Fear for yourself and let me know what you think.
No comments:
Post a Comment