Autonomy, Pluralism, and Contract Law Theory
Dagan, Hanoch, Law and Contemporary Problems
The proposition that the commitment to individual autonomy is one of the most important foundations of contract is a truism, almost a cliche. (1) Contract, in this common account, is the legal cousin of the social practice of promise and voluntary obligation, and the significance of that social practice to autonomy implies that contract law should be guided by the will of the parties or by their mutual consent. Accordingly, contract law, in this view, is both passive and structurally monist. It should be relatively passive due to the injunction to merely piggyback on people's expressions of their will, and it should be structurally monist--a unified body of doctrine guided by one regulative principle--because its normative underpinnings are the same irrespective of the type of contract at hand. (2)
But the seemingly necessary association of autonomy-based justifications of contract with passivity and structural monism is mistaken. (3) It underrates the significance of the shift from the social (and moral) to the legal both in terms of the value of the pertinent practice and the potential for securing this value in the real world. Contract law facilitates--at times even enables--many more forms of voluntary obligations than its social counterpart, notably obligations between strangers that may be too risky without legal facilitation. Indeed, insofar as the ideal of autonomy as self-authorship is concerned, (4) expanding these possibilities of interpersonal interactions may well be contract law's most important mission. This potential role of contract law in offering people a diverse set of robust frameworks to organize their lives, which thus contributes to their ability to be the authors of their own lives, implies that an autonomy-based justification of contract should be neither passive nor structurally monist. (5) Quite the contrary, it prescribes a structurally pluralist theory of contract, in which contract law is an umbrella of a diverse set of institutions, and each institution responds to a different regulative principle--that is, each vindicates a distinct balance of values in accordance with its characteristic subject matter and the ideal type of relationships it anticipates. (6)
Revisiting Joseph Raz's account of the relationship between contract law and voluntary obligations is particularly helpful for establishing these claims and pointing out the ways in which these mistakes can be corrected. Although rather brief and scattered, Raz's remarks on contracts--which, like other autonomy-based theories, offer a rather passive and structurally monist account of contract law--"continue to resonate in the literature" (7) and are likely to be further influential given his prominence as a legal philosopher. But Raz is also one of our most distinguished political philosophers, and as such he is closely identified with the notion that a commitment to autonomy as self-authorship imposes on the state important responsibilities in supporting pluralism. Thus, Raz's own theory of autonomy and its implications for the role of the state and its law provides the best foundation for correcting the blemishes in his (and others') autonomy-based account of contract. (8)
RAZ ON CONTRACT LAW
Raz makes two explicit claims regarding contracts, and his discussion includes or implies two further propositions. Separating out these four propositions is important for the purposes of this article, which builds on the first two in order to criticize the others.
Raz's first proposition, and the starting point of his analysis of contracts, relates to the purpose of contract law. Raz argues that "[t]he purpose of contract law should be not to enforce promises, but to protect both the practice of undertaking voluntary obligations and the individuals who rely on that practice." (9) The shift from enforcing promises to protecting the practice of undertaking voluntary obligations is consequential to the way we should shape the law. …