Contracts, Markets, and Justice: On Peter Benson's 'Justice in Transactions'
Forthcoming, University of Toronto Law Journal
27 Pages Posted: 22 Jun 2020
Date Written: June 18, 2020
Peter Benson’s “Justice in Transactions” offers a compelling internal, non-instrumental Hegelian conception of the law of contracts. It also connects this non-instrumental conception with broader issues like the social theory of the market, liberal justification, and socioeconomic justice. The book is a remarkable achievement. As such, it will—and should—become part of the canon of contract theory. In this review essay, I focus on the theoretical status of the reconstruction offered by Benson in Part One of the book. I am sympathetic to the “juridical” starting point of Benson’s theory, and agree that contract law and its doctrinal categories should be taken seriously. However, I argue that Benson’s theory sits at a middle position between a doctrinalist account and a full-blown philosophical theory of contracts, and that this detracts from its ability to provide an adequate public justification of contract law as a legal institution. Finally, I cast some doubts on Benson’s account of the relationship between his juridical conception of contract and markets and distributive justice.
Keywords: contract theory, justice in transactions, juridical conception, public justification, Peter Benson
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