Liberalism’s concern with human freedom seems related to contractual freedom and thus contract law. There are, however, many strands of liberal thought and which of them best justifies contract is a difficult question. In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller offer a vision of contract based on autonomy. Drawing on the work on Joseph Raz, they argue that extending autonomy should be the law’s primary concern, which requires that we extend the range of contractual choices available. While there is much to admire in their work, I argue that autonomy as conceived by Dagan and Heller cannot justify contract law. First, there are reasons to doubt the coherence of autonomy as an ideal. Second, given the pluralism of liberal societies, which, for example, often include substantial numbers of religious believers who reject core assumptions of autonomy theory, it is doubtful that such a theory can legitimate contract law. A more modest version of liberalism concerned primarily with protection against cruelty and providing a modus vivendi in pluralistic societies is more tenable. Such a vision of liberalism yields a more modest vision of contract law. Rather than making it into another means of realizing the dream of a more autonomous self, it is enough that contract law facilitates commerce and the marketplace. Markets, in turn can serve an important – albeit limited – role in sustaining the peaceful cooperation and coexistence toward which a more realistic liberalism should aim.
Oman, Nathan B, Contract Law and the Liberalism of Fear (January 9, 2019) 20 Theoretical Inquiries in Law (2019, forthcoming).