Philosophy of Contract Law

Stanford Encyclopedia of Philosophy (Winter, 2021)

12 Pages Posted: 15 Dec 2021

See all articles by Daniel Markovits

Daniel Markovits

Yale Law School

Emad H. Atiq

Cornell University - Law School; Cornell University - Sage School of Philosophy

Date Written: November 23, 2021

Abstract

The law of contracts, at least in its orthodox expression, concerns voluntary, or chosen, legal obligations. When Brody accepts Susan’s offer to sell him a canoe for a set price, the parties’ choices alter their legal rights and duties. Their success at changing the legal landscape depends on a background system of rules that specify when and how contractual acts have legal effects, rules that give the offer and acceptance of a bargain-exchange a central role in generating obligations. Contract law conceived as a body of rules empowering individuals to shape their own rights and responsibilities presents an object of philosophical study. The philosophy of contract includes two broad sets of projects. One set, the focus of the first part of this entry, targets the basic structure and normative justification of the law of contracts. The aim is to subsume a salient body of contract law rules under general principles in order to clarify contract law’s conceptual categories, distinguish it from other areas of law, and specify criteria relevant to its normative appraisal. This kind of philosophical work presupposes detailed knowledge of the law in existing legal regimes, and the entry begins by outlining the common law of contracts. A second set of projects draws on resources from the philosophy of language, philosophy of action, and moral and political philosophy to address debates within contract law. Questions about the nature of meaning and interpretation, intentionality, freedom in contract, and distributive justice drive contemporary legal debates concerning contract formation, interpretation, and enforcement. Philosophical work on these topics has attracted significant commentary which serves as the focus of the second part of this entry.

Keywords: Contracts, Promises, Efficiency, Interpretation, Intentions, Coercion, Ethics of Surplus Sharing

Suggested Citation

Markovits, Daniel and Atiq, Emad H., Philosophy of Contract Law (November 23, 2021). Stanford Encyclopedia of Philosophy (Winter, 2021), Available at SSRN: https://ssrn.com/abstract=3981974

Daniel Markovits

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Emad H. Atiq (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Cornell University - Sage School of Philosophy ( email )

218 Goldwin Smith Hall
Ithaca, NY 14853-3201
United States

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