Autonomy and Pluralism in Private Law

Abstract

The main claim of this Essay, prepared for the Oxford Handbook of the New Private Law, is that much of private law is guided by an autonomy-enhancing telos. This telos is intrinsic to private law because two of its pillars – property and contract – are essentially power-conferring. This autonomy-enhancing telos also stands at the core of private law’s response to its acute legitimacy challenge.

An autonomy-enhancing private law forms the foundation of a social life premised on the maxim of reciprocal respect to self-determination. It facilitates people’s self-determination by offering a structurally pluralist repertoire of property types and contract types. But, an autonomy-enhancing private law is careful to support only interpersonal interactions that do not undermine self-determination. This is why it ensures that these property types and contract types comply with relational justice and sufficiently protect people’s right to exit.