Autonomy and Pluralism in Private Law
Oxford Handbook of the New Private Law (Andrew Gold et al. eds., 2019 Forthcoming)
24 Pages Posted: 14 Jan 2019 Last revised: 1 Mar 2019
Date Written: January 1, 2019
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.
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