Can Contract Emancipate? Contract Theory and The Law of Work

23 Theoretical Inquiries L. (forthcoming 2022)

36 Pages Posted: 29 Apr 2021

See all articles by Hanoch Dagan

Hanoch Dagan

Tel Aviv University - Buchmann Faculty of Law

Michael Heller

Columbia University - Columbia Law School

Date Written: April 28, 2021

Abstract

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we re-unite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work.

Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by – and relegated to – employment and labor law. But contract law is not what contract theorists claim. Neither is contract law what the dominant employment theorists fear – a domain that necessarily misses the constitutive place of work in people’s life-plans and overlooks the systemic vulnerability of workers to their employers.

Contract, we contend, need not be work law’s canonical “other.” The first step is to see that contract, rightly understood, is an autonomy-enhancing device, one founded on the fundamental liberal commitment of reciprocal respect for self-determination. From this “choice theory” perspective, the presumed opposition between employment and contract law dissolves. We show that many employment law doctrines are not external to contract, but are instead entailed in liberal contract itself.

Grounding worker protections in contract theory has two positive effects. First, it offers workers more secure protection than reliance on momentary public law compromises. Second, it reveals contract’s emancipatory potential for all of us -- not just as workers, but even as widget buyers. Contract can empower, and employment can show us the way.

Suggested Citation

Dagan, Hanoch and Heller, Michael, Can Contract Emancipate? Contract Theory and The Law of Work (April 28, 2021). 23 Theoretical Inquiries L. (forthcoming 2022), Available at SSRN: https://ssrn.com/abstract=3835673

Hanoch Dagan (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, 69978
Israel
+972 3 640 7302 (Phone)

Michael Heller

Columbia University - Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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