A Particle of Freedom: Natural Law Thought and the Kantian Theory of Transfer by Contract

Abstract

Modern contract law theorists frequently invoke Kantian ideas to conceptualize contract as a form of immediate transfer. The Kantian theory of contract itself is eclectic: Kant makes use of the main conceptual building blocks of Natural Law (in particular Grotian) contract doctrine – promise and transfer. Yet Kant re-arranges and adapts them to his own epistemology and conceptual system. I submit that because of this connection, additional light can be shed on Kant’s theory of contract by placing it in the context of contemporary Natural Law discourse. One of the most outspoken critics of contract theory in the Grotian tradition was then famous (and now apocryphal) legal philosopher Theodor Schmalz. Schmalz faulted Natural Law thought for conceptualizing contract as transfer by fallaciously – “subreptively” – explaining the normative event of creating an obligation through the model of the empirical transfer of physical objects. Kant’s theory reads like a response to this critique: Kant avoids modelling contract on the transfer of property. Rather, he explains any transfer as contractual, brought about by a unified will.

Keywords: contract theory, transfer theory of contract, rights, natural law, Kant, Grotius

JEL Classification: K10, K11, K12, K40, K49