Socializing Contract

Abstract

When Charles Fried published Contract as Promise in 1981 it was an explicitly political intervention to claw back space for the morality of the "free market" as against the morality of collective choice that was then au courant. It was, in other words, a de-socialization of contract. Contract theory has moved in Fried's direction: even egalitarian moral theorists read morality into the formal logic of exchange and even instrumentalists articulate a formal logic drawing from neoclassical welfare economics. This article attempts to claw back some ground for a socialized notion of contract. A socialized notion of contract treats the legal facilitation of voluntary exchange in pluralist terms, as furthering an overlapping set of values—stabilizing expectations, enabling institutional experimentation, facilitating free choice, structuring decentralized forms of planning, etc.—to different degrees in different contexts. It treats the law regulating contract as structuring social coordination in a way that mediates between these values and the values relevant to the situation in which a contract is used. And it treats it as an explicitly political question who shapes that law and for what purposes.

Keywords: Contract, Contract Theory, Liberalism, Pragmatism, Consumer Contracts, Employment Contracts