Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we re-unite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work.
Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by – and relegated to – employment and labor law. But contract law is not what contract theorists claim. Neither is contract law what the dominant employment theorists fear – a domain that necessarily misses the constitutive place of work in people’s life-plans and overlooks the systemic vulnerability of workers to their employers.
Contract, we contend, need not be work law’s canonical ‘other’. The first step is to see that contract, rightly understood, is an autonomy-enhancing device, one founded on the fundamental liberal commitment of reciprocal respect for self-determination. From this ‘choice theory’ perspective, the presumed opposition between employment and contract law dissolves. We show that many employment law doctrines are not external to contract, but are instead entailed in liberal contract itself.
Grounding worker protections in contract theory has two positive effects. First, it offers workers more secure protection than reliance on momentary public law compromises. Second, it reveals contract’s emancipatory potential for all of us – not just as workers, but even as widget buyers. Contract can empower, and employment can show us the way.
Dagan, Hanoch and Heller, Michael, Can Contract Emancipate? Contract Theory and The Law of Work (April 28, 2021). 23 Theoretical Inquiries in Law (forthcoming 2022).