Democratic Contract Law

Martijn W. Hesselink

University of Amsterdam - Centre for the Study of European Contract Law (CSECL)

March 13, 2014

European Review of Contract Law 11(2), 81-126
Centre for the Study of European Contract Law Working Paper Series No. 22014-03
Amsterdam Law School Research Paper No. 2014-24

The paper discusses the normative relationship between contract law and democracy. In particular, it argues that in order to be legitimate contract law needs to have a democratic basis. Private law is not different in this respect from public law. Thus, the first claim made in this paper is that also for contract law a democratic basis is a necessary condition for legitimacy. A fully democratic basis may also be a sufficient condition for a legitimate and just contract law. However, my argument in that regard is more conditional. If all relevant reasons and arguments (including moral and ethical arguments), made by people from different corners in society, have had a fair and equal chance of influencing the contract law making process, then the outcome may be hard to challenge on the basis of an external standard, such as justice, morality, tradition, efficiency or private law's purported essential nature. These two claims, if successful, have important implications for contract theory. In particular, they lead to a largely procedural theory of contract law, which is pluralist with regard to contract law’s content: arguments based on party autonomy, weaker party protection, corrective justice, economic efficiency, or legal traditions, will have to demonstrate their strength within the democratic debate and cannot claim to represent some essential truth with regard to the nature of contractual obligation. The justice or legitimacy of contract law cannot be determined in advance by theoretical analysis but will have to establish itself within the democratic debate. Private law theorists have no privileged access to the truth of contract law and contractual justice.

Number of Pages in PDF File: 37

Keywords: democracy, private law, contract law, morality, tradition, justice, efficiency, justice, legitimacy, normative

JEL Classification: K12

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Date posted: March 15, 2014 ; Last revised: September 18, 2015

Suggested Citation

Hesselink, Martijn W., Democratic Contract Law (March 13, 2014). European Review of Contract Law 11(2), 81-126; Centre for the Study of European Contract Law Working Paper Series No. 22014-03; Amsterdam Law School Research Paper No. 2014-24. Available at SSRN: http://ssrn.com/abstract=2408426 or http://dx.doi.org/10.2139/ssrn.2408426

Contact Information

Martijn W. Hesselink (Contact Author)
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) ( email )
University of Amsterdam, Faculty of Law
P.O. Box 1030
Amsterdam, 1000 BA
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