Dagan and Heller, ‘Autonomy for Contract, Refined’

In The Choice Theory of Contracts, we advance a claim about the centrality of autonomy to contract. This Issue offers thoughtful and penetrating critiques. Here, we reply. Autonomy is the grounding principle of contract. In Choice Theory, we stressed the (1) proactive facilitation component of autonomy, in particular, the state’s obligation regarding contract types. Here, we highlight two additional, necessary implications of autonomy for contract: (2) regard for future selves and (3) relational justice. These three aspects of autonomy shape the range, limit, and floor, respectively, for the legitimate use of contract. They provide a principled and constrained path for law reform.

I. Robert Stevens argues that autonomy as self-authorship should not serve as contract law’s normative foundation. Drawing on HLA Hart, we reply that the core of Stevens’ critique – rejecting modest affirmative duties in private law – is misplaced. Next, Stevens argues autonomy fails descriptively to account for existing law. In reply, we show choice theory does closely fit the law, including duress and non-disclosure, formation, privity, and remedies. Both of Stevens’ challenges rely on transfer theory, a view we reject.

II. Arthur Ripstein argues that our analysis of transfer theory fails, in part, because it is not a ‘single thing’, with a shared set of commitments. We reply that his version, ‘the bilateral modification theory’, fares no better than other transfer theories. Second, Ripstein contends that we subscribe to a confused form of pluralism, that is malleable enough to provide no real guidance’. We reply that autonomy generates powerful guidelines for shaping contract law. Choice theory is not foundationally value pluralist.

III. Brian Bix offers a useful case study of choice in family law. He argues that state support for many types of family agreements is not grounded in autonomy and choice. We counter that family law highlights the floor of legitimate contractual interactions and the limit of contract when it adjusts for possible external effects, in particular, effects regarding children.

Choice theory sharply cabins the indeterminacy inherent in ‘public policy’ analysis, by comparison with the accounts of Stevens, Ripstein, and Bix. Each paper in this Issue advances the field; each prompts us to refine choice theory – all steps we hope toward a more just and justified law of contract.

Dagan, Hanoch and Heller, Michael, Autonomy for Contract, Refined (July 24, 2018). Law and Philosophy, forthcoming.

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