Contracts and Capabilities: An Evolutionary Perspective on the Autonomy-Paternalism Debate

Abstract

An evolutionary conception of contract law is suggested as a basis for assessing claims made in the autonomy-paternalism debate. Paternalism forms one part – although by no means the whole – of a discriminating approach to contract enforcement. Selective enforcement is a long-standing feature of contract law systems, which have developed alongside the emergence of market-based economies in liberal democratic societies. Contractual regulation of this kind can be justified in normative terms by reference to capability theory. Markets are significant capability-enhancing institutions, but their effect depends on complementary regulatory mechanisms, including some of those commonly (if not always accurately) termed ‘paternalistic’.