Liberalism's Fine Print: Boilerplate's Allusion to Human Nature

23 Pages Posted: 2 Feb 2015 Last revised: 26 Apr 2017

See all articles by Kenneth K. Ching

Kenneth K. Ching

Regent University - School of Law

Date Written: February 1, 2015

Abstract

The boilerplate debate is Liberalism writ small, and both boilerplate and Liberalism must address the problem of freedom: given the individualistic nature of the Good, how can individual freedom be reconciled with social welfare?

Alasdair MacIntyre has argued that the problem of freedom cannot be solved by liberal theory. Because Liberalism has no concept of human nature, there is no rational way to choose between an individual’s interests and society’s. Thus, Liberalism becomes a mask for arbitrary power.

This essay argues that the boilerplate debate resists MacIntyre’s critique of Liberalism. In the boilerplate debate, rights and utility are not set against each other. Boilerplate theorists agree: the enforcement of boilerplate must vindicate both individual rights and social utility.

This overarching agreement implies that the boilerplate debate – contrary to the tenets of Liberalism – is regulated by concepts of human nature and purpose. Therefore, boilerplate theorists should direct their attention to these concepts of human nature and purpose if they are to resolve the problem of freedom in boilerplate contracts.

Part I of this essay describes liberal political theory as a dialectic narrative between Libertarianism and Progressivism; it also describes Alasdair MacIntyre’s critique of Liberalism. Part II of this essay describes the boilerplate debate as it has taken place over the last hundred years. Part III of this essay situates the boilerplate debate within Liberalism. Part IV of this essay argues that the boilerplate debate resists MacIntyre’s critique of Liberalism because it is regulated by concepts of human nature and purpose.

Keywords: Contracts, Liberalism, Boilerplate, Standard Form Contracts, Contracts of Adhesion, Alasdair MacIntyre, Human Nature, Telos, Freedom, Individualism, Libertarianism, Collectivism, Progressivism, Rights, Utilitarianism

Suggested Citation

Ching, Kenneth K., Liberalism's Fine Print: Boilerplate's Allusion to Human Nature (February 1, 2015). 99 Marquette Law Review 631 (2016). Available at SSRN: https://ssrn.com/abstract=2558785 or http://dx.doi.org/10.2139/ssrn.2558785

Kenneth K. Ching (Contact Author)

Regent University - School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

HOME PAGE: http://www.regent.edu/ching

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