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Licensed Unlicensed Requires Authentication Published by De Gruyter August 18, 2019

Contract Law in a Just Society

Yitzhak Benbaji

Abstract

This Article challenges Hanoch Dagan and Michael Heller’s choice theory of contract, according to which contract law is autonomy-enhancing. I make three points: first, the choice theory of contract cannot clarify the critical normative distinction between enforceable formal contracts and unenforceable informal promises. Second, I develop the roads/contract-types analogy: instead of promoting individuals’ autonomy and enhancing their choice among different projects, most contract types are justified by the preexisting preferences of citizens. Finally, I outline a teleological justification of contract law that is different from that propounded by Dagan and Heller. On this view, contract law should remain neutral as to which conception of the good is commendable and provide individuals with the means of shaping and pursuing a conception of a good life.


* Buchmann Faculty of Law, Tel Aviv University. Thanks to Aditi Bagchi, Dana Gur, Hanoch Dagan, Michael Heller, Ofer Malcai, and Joseph Raz. Cite as: Yitzhak Benbaji, Contract Law in a Just Society, 20 Theoretical Inquiries L. 411 (2019).


Published Online: 2019-08-18
Published in Print: 2019-07-26

© 2019 by Theoretical Inquiries in Law

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