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

13 Pages Posted: 25 Oct 2010  

Simon Deakin

University of Cambridge - Centre for Business Research (CBR); European Corporate Governance Institute (ECGI); University of Cambridge - Faculty of Law

Date Written: October 22, 2010

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’.

Suggested Citation

Deakin, Simon, Contracts and Capabilities: An Evolutionary Perspective on the Autonomy-Paternalism Debate (October 22, 2010). Erasmus Law Review, Vol. 3, No. 2, 2010. Available at SSRN: https://ssrn.com/abstract=1697491

Simon F. Deakin (Contact Author)

University of Cambridge - Centre for Business Research (CBR) ( email )

Top Floor, Judge Business School Building
Trumpington Street
Cambridge, CB2 1AG
United Kingdom
+ 44 1223 335243 (Phone)

European Corporate Governance Institute (ECGI)

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

HOME PAGE: http://www.ecgi.org

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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