Types of Contracts and Law's Autonomy-Enhancing Role

Abstract

Liberals, especially of the Nozickian stripe, are accustomed to think about the ideal contract law as both reactive and minimalist. The best way contract law can serve freedom, they assume, is by following the parties’ consent, that is: enforce whatever private deals they agree to and otherwise get out of the way. Drawing on Nozick’s vision of utopia as a framework of utopias, this Essay argues that this view, in which contract law should adopt such a hands-off stance, is misguided and accordingly that the consent theory of contracts should be rejected.

In its stead, liberals should opt for choice theory, which focuses on how contract law can, should, and to some extent already does facilitate people’s autonomy. Contract law’s embrace of the objective approach and its extensive gap-filling apparatus are familiar means for pursuing this mission. No less important is the heterogeneity among contract types, especially where it generates an adequate range of options within major spheres of contracting.

I do not underestimate the challenges, both substantive and institutional, choice theory must face. But there is no reason to think that these challenges are insurmountable; and facing them is worthwhile once we appreciate contract’s moral significance of giving free individuals a facility for extending their reach by enlisting the reliable collaboration of other free persons.