This Article develops a liberal theory for one of the most discussed topics of contract law (its rules of interpretation) and one of the most neglected (implication). It considers these topics in tandem because they both address contractual obligations that ostensibly flow from the parties' own choices. We reject the view which misrepresents the task of distilling these choices as value-neutral, and offer in its stead an approach that grounds interpretation and implication on liberal contract's commitment to proactively support people's joint plans, while securing contract's compliance with relational justice. This account offers conceptual clarity, vindicates and elucidates significant parts of contemporary law, and suggests several pathways for reform. Notably, it allows us to sketch a liberal doctrine for the interpretation of contractual writings in which at least one party is an individual, rather than a legally sophisticated wealth-maximizing firm.

In Relational Justice we lay out a new approach to understanding some of society's most important building blocks, arguing that private law should, and to a significant degree already does, abide by the fundamental commitment to reciprocal respect for self-determination and substantive equality. The generous and rigorous book reviews of Aditi Bagchi, Marija Bartl, Brian Bix, Andrew Gold, Felipe Jiménez, and Joanna Langille push us to clarify and refine two critical points. First, the ambition of private law is primarily constructive and prospective. This means that relational justice is aimed at offering a broad loadstar that should guide legal systems across time and place; and it provides tools for internal legal critique, thus avoiding the risk of quietism which often plagues approaches that take law seriously (as we do). Second, relational justice is a liberal theory of private law, which is required by the commitments to freedom and equality, properly conceived. This thesis implies that relational justice is sharply contrasted with corrective justice (in all its variations); that its instantiation in private law is intrinsically valuable; that it incorporates built-in features which ensure that private law does not overreach any liberal boundary; and that it points to categories where elevated interpersonal responsibility is called for.

You can scribble an agreement on a napkin or hire lawyers to negotiate a hundred-page contract. Either way, most of your contractual obligations will not be in your document. They will be in the background rules contract law applies absent your express agreement. Justifying these defaults is a core task of contract theory; getting them right is a core task of contract law. This Article introduces the autonomy default paradigm, a conceptually coherent and normatively attractive account of contract law defaults. We show that defaults are justified to the extent they enhance our autonomy, understood as self-determination. They vindicate our autonomy through two pathways: (a) empowering defaults that proactively facilitate people's autonomy and (b) safeguarding defaults that protect our future selves and ensure relational justice. Often, the parties to commercial contracts are legally sophisticated players who just want to get wealthier. There, the welfare-maximizing default is often the autonomy-enhancing one. But for the vast run of contracts-getting jobs, getting married, buying homes, buying stuff-autonomy defaults may diverge from their efficiency-based counterparts. In these cases, the law often does and always should opt for autonomy defaults, even at the price of some efficiency.

This chapter, written for the “Research Handbook on The Philosophy of Contract Law,” explores the role of contract in securing and promoting people’s autonomy. It discusses four distinct theses: (1) contract identifies the circumstances in which entitlements are validly transferred from person to person by their consent, so as to secure clear interpersonal boundaries; (2) contract offers an alternative practice to promise, which opens up the option of engaging with other people outside the framework of preexisting or ongoing relationships; (3) contract vindicates personal sovereignty by respecting parties’ ex ante intent to maximize the expected joint value of their agreements at the time they are made; (4) contract facilitates people’s ability to join forces in their respective plans into the future on terms of reciprocal respect for self-determination. The main task of this chapter is to present these four theses in their own best light, rather than interrogate their possible pitfalls. While discussing these theses, the chapter briefly addresses their partial convergences as well as their relationships with Charles Fried’s and Joseph Raz’s accounts of contract. Even more importantly, it refines their distinctive voices along two dimensions: (1) their understandings of autonomy and how autonomy relates to independence, well-being, utility, community, and justice; and (2) their views as to what constitutes the core features of contract and contract law as well as what are the main animating principles that should guide contractual doctrines.

This chapter, written for a collection of essays honoring Stephen Smith, critically studies his theory of interpretive legal theories. Smith insists that interpretive theories must not engage with substantive moral arguments and the resulting account he offers for interpretive theories is apt for the task he assigns to them, namely: capturing the way legal theories can serve judges, lawyers, and other students of contract law in understanding the law in its daily operation. But since the conventional wisdoms of the pertinent legal community on which this meta-theory inevitably relies are necessarily contingent, it does not exhaust the universe of interpretive legal theories. When these prevailing wisdoms are challenged, as they occasionally are (and should be), legal reasoning is transformed. In these potential ‘paradigm shifts’ of the law (as I metaphorically call them), lawyers resort to arguments that were hitherto ‘off the wall’, but nonetheless rely on an understanding of law’s pedigreed sources and concepts. These arguments seek to illuminate the doctrine’s deep normative meaning and significance, as well as the proper connections between its different parts. Thus, they require a different genre of interpretive legal theories: reconstructive theories, which offer a critical reflection from within and open up the way for reading law’s pedigreed sources and concepts in a more normatively justified fashion than they are currently understood.

Abstract This chapter develops a conception of interpersonal justice that duly addresses the fundamental circumstances of private law. The justice of private law must not merely safeguard people’s independence but also attend to private law’s responsibility for facilitating human interactions lest it ends up jeopardizing the significance of people’s mutual relationships in the pursuit of their self-determination. Likewise, the justice of private law should not be content with vindicating formal equality. Instead, it should ensure that the relationships it oversees (and, at times, even constructs) are interactions between substantively equal individuals. To enable the interacting parties to treat one another as both self-determining and substantively equal persons, private law must take into account people’s circumstances as well as constitutive choices that pertain to their ground projects (as opposed to their mere preferences).

Abstract Private law invites a conception of interpersonal justice that requires people to treat one another as self-determining and substantively equal. This chapter undertakes the task of articulating the systemic constraints on—and thus guidelines for—translating this maxim of relational justice into the currency of law. It develops four main lessons: (1) A liberal legal order should abide by the rule of law that requires legal prescriptions to be relatively clear, minimizing recourse to individualized knowledge and radical ad hoc judgments. (2) Many legal subjects—especially well-informed and sophisticated ones—may take law’s prescriptions as incentives rather than norms, and the architects of private law must be attentive to these potential responses. (3) The mutual dependence of private and public law implies that public concerns may, at times, override private law or recruit a private law framework to serve a collective goal. Given that the state’s performance of its public law duties impacts people’s circumstances, it may also affect the content of their responsibilities. (4) The realization that the connection between private law and adjudication is contingent implies that the legal articulation of relational justice must pay heed to the institutional and procedural possibilities at hand.

Abstract This chapter argues that civil recourse, though often instrumental and at times even intrinsically valuable to private law, must not serve as its defining characteristic. Private law governs our horizontal, interpersonal interactions in a range of social and economic settings. In sum, it is the law of human relations. Private law meets people while embedded in their various interaction settings, implying they must not be viewed as dissociated individuals. It does not treat individuals as executive agents, nor does it derive their reciprocal obligations from civic duties they may owe to other members of their political communities. We participate in these interpersonal interactions as real individuals with specific life plans, distinctive personhoods, and special circumstances, not as abstract beings. This condition of interdependence means that many of our valuable projects are joint projects, and in pursuing these plans, we may often become vulnerable to or interfere with the legitimate interests of others, both within and without the privity of the joint enterprise.

Abstract In summarizing this book’s findings, this brief final chapter shows that, while theoretically innovative, relational justice theory is more loyal to the actual workings of private law than its major rivals. It also demonstrates that private law can, and to a significant extent already does, transcend the common law mold and use a variety of other procedural and institutional mechanisms. Finally, by articulating the currently implicit normative commitment of private law to reciprocal respect for self-determination and substantive equality, relational justice theory offers internal resources for critique and reform that can push private law (both within and without the state) toward the fulfillment of its great humanist promise.

Abstract The law of restitution is said to be governed by the principle of preventing unjust enrichment. But the distinction between just and unjust enrichment has puzzled generations of judges, lawyers, and scholars. Prominent attempts to do so without relying on an open-ended intuitionist sense of right and wrong fall apart upon scrutiny. This chapter argues that private law’s commitment to relational justice offers the answer and demonstrates this claim through the study of two major paradigmatic categories of the law of restitution: the law of mistaken payments, often described as restitution law’s “core case,” and the doctrines governing self-interested conferral of benefits.

Freedom of contract plays a key role in many of our legal and public debates, but its meaning is rarely explicitly interrogated. Often it is simply assumed that freedom of contract stands for the idea that the law should just enforce private deals and otherwise get out of the way. This conventional association of freedom of contract with negative liberty may explain why it typically ranks high in the list of arguments summoned by libertarians. It is likewise evident when liberal egalitarians fend off these arguments by claiming that public values must override parties’ freedom of contract. My aim in this Lecture is to upset this seemingly obvious understanding of freedom of contract and to offer an alternative. I argue that contract is a power-conferring institution, with autonomy as its grounding principle, its telos. Contract’s crucial contribution to people’s self-determination implies an obligation to instantiate contract in law; it is also the ultimate justification for recruiting law’s coercive power for contract enforcement. But these propositions imply that contract law must be designed in line with the requirements of its autonomy-enhancing telos. Specifically, this liberal telos prescribes the proper boundaries of contract’s jurisdiction. Freedom of contract is the freedom to use contract within the boundaries of its legitimate jurisdiction. Attempts to enlist the law in the service of an agreement that seeks to cross these boundaries – to use contract in clearly autonomy-reducing ways – must thus be summarily rejected as abuses of the idea of contract. This means that rather than an intervention in people’s freedom of contract, guarding contract’s boundaries along these lines must be understood as a necessary means for securing the integrity of contract and thus ensuring its continued legitimacy. My first task in this Lecture is descriptive. Part I outlines the libertarian understanding of freedom of contract, which is shared by both friends and foes of a laissez-faire vision of the law. Using two timely work-law debates – dealing with the proper scope of workers’ inalienable rights and of employee non-compete agreements – Part I also demonstrates how this libertarian understanding of freedom of contract obscures the inner limits of contract’s jurisdiction. My second task is conceptual and normative. Part II shows that the view of contract implicit in the conventional understanding of freedom of contract is conceptually unnecessary and normatively impoverished. Building on my previous work in contract theory, it then goes on to develop the alternative, genuinely liberal conception of freedom of contract. Properly understood, I argue, freedom of contract is intrinsically bounded by liberal contract’s commitment to relational justice (that is: reciprocal respect for self-determination and substantive equality) and to the autonomy of the parties’ future selves. My third and final task is prescriptive and reformist. Part III applies the liberal conception of freedom of contract to the debates over workers’ rights and non-compete agreements. The intrinsic boundaries of the liberal conception of freedom of contract, I argue, entail both the entrenchment of workers’ rights and the careful limitations of non-competes.

Abstract This chapter argues that the rule of nonfeasance liability is best explained as reflecting institutional rather than moral considerations. At the foundational level, tort law is—and should be—hostile to the notion of relieving private persons of easy rescue duties, but in many situations, this hostility does not surface due to institutional limitations. It is found, however, in the form of exceptions to the rule whenever these limitations are eliminated or satisfactorily contained. This chapter shows that this account offers a better explanation than its rivals of the existing doctrine and provides normative resources to lawmakers, enabling them to develop it by recognizing additional exceptions to the rule.