Contract as Empowerment: A New Theory of Contract

Robin Bradley Kar

University of Illinois College of Law

August 4, 2014

Modern contract theory is in a quandary. As Alan Schwartz and Robert E. Scott have observed: “Contract law has neither a complete descriptive theory, explaining what the law is, nor a complete normative theory, explaining what the law should be.” This article aims to cure these deficiencies with a novel theory, “Contract as Empowerment”.

Contract as Empowerment is a deontological (duty-based) theory, rooted in a special strand of social contract theory known as “contractualism”. The theory nevertheless differs from more familiar deontological theories, which are typically rooted in moral intuitions about promising, autonomy or reliance. Because of its foundation in social contract theory, contract as empowerment can absorb a number of important economic and psychological insights, which have traditionally given efficiency theories explanatory advantages over traditional deontological theories. But contract as empowerment can absorb these insights without subjecting them to thoroughgoing economic interpretation. It can thereby produce a more robust, unified and normatively satisfying account of many core areas of doctrine. Among other things, contract as empowerment offers a more compelling account of the consideration doctrine than exists in the current literature; a better account of the expectation damages remedy (both descriptively and morally); and a special way of understanding the appropriate role of certain doctrines like unconscionability, which regulate private market activity by making the scope or content of contractual obligations depend on facts other than contracting parties’ subjective wills.

This last fact provides a major point of contrast with most existing theories of contract. One of the most striking features of the way that standard debates between deontological and consequentialist theories have been framed in this area of the law is that general theories on both sides typically share a key implication. They imply that legal doctrines that invite courts to police bargains for fairness reflect alien intrusions into the basic subject matter of contract. Contract as empowerment suggests that this framing has been distorting our understanding of contracts (and hence modern markets) for some time now. It offers an alternative framework, which understands both private market empowerment and some market regulations as direct expressions of the same fundamental principles. Because this framework is principled, it can help depoliticize a range of currently heated debates about the appropriate scope and role of market regulation. This framework can be applied to many different forms of market exchange — from those in consumer goods to labor, finance, credit, mortgages and many others.

This article is the first in a two part series. Contract as Empowerment introduces and develops the theory of contract as empowerment. Contract as Empowerment II applies the theory to a range of doctrinal problems and argues that contract as empowerment offers the best general interpretation of contract law. This second article is currently available on ssrn at: http://ssrn.com/abstract=2476759.

Number of Pages in PDF File: 57

Keywords: contract, promise, theory, efficiency, jurisprudence, philosophy, economics, efficient breach, private law, expectation damages, unconscionability, market regulation, fairness, welfare, reliance, empowerment, distributive justice, economic, growth, obligation, consideration

JEL Classification: A1, B2, B4, D4, D6, F1, H1, O1, L3, P1, P2

working papers series

Download This Paper

Date posted: August 6, 2014 ; Last revised: August 18, 2014

Suggested Citation

Kar, Robin Bradley, Contract as Empowerment: A New Theory of Contract (August 4, 2014). Available at SSRN: http://ssrn.com/abstract=2476148

Contact Information

Robin Bradley Kar (Contact Author)
University of Illinois College of Law ( email )
504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
HOME PAGE: http://www.law.uiuc.edu/faculty-admin/directory/RobinKar
Feedback to SSRN

Paper statistics
Abstract Views: 1,501
Downloads: 369
Download Rank: 4,197

© 2015 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.438 seconds