Objectivity and Subjectivity in Contract Law: A Copernican Response to Professor Shiffrin

Abstract:     
This is a response to Seana Shiffrin's recent and important contribution to the continuing debate whether there is a universal moral or economic truth at the heart of contract law. Her most significant advance toward a general theory of promise and contract is not, however, her analysis of the divergence of morality and contract, but instead her identification of the critical moment at which the interposition of the public in a private matter occurs or is contemplated. This essay carries that theme forward, suggesting that a universal justification for contract law is not possible because the law, by its very nature, objectifies (publicly or with that implicit threat) what was heretofore a private relationship.

Keywords: contract, promise, Shiffrin, justification, public, private

JEL Classifications: K10, K12

Accepted Paper Series