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Neutrality, Autonomy, and Freedom of Contract

Posted: 29 Feb 2008  

Dori Kimel

University of Oxford - Faculty of Law

Abstract

The article examines the popular notion that liberalism, or liberal theory of contract, is committed to a particularly rigid conception of the freedom of contract. The article argues that this notion is mistaken, and seeks to identify its roots in certain misconceptions of modern liberalism and its implications, and in a certain misunderstanding concerning the nature of contract. Neutral political concern, the value of personal autonomy, and finally the belief that contracts are identical to promises in terms of their significance for personal autonomy, are analysed and rejected as bases for the association of liberalism with commitment to a minimally limited freedom of contract. Instead, it is shown that such considerations are compatible with, and in some cases directly recommend, various forms of intervention in the freedom of contract, and an active role for the state in shaping and regulating contractual activity.

Suggested Citation

Kimel, Dori, Neutrality, Autonomy, and Freedom of Contract. Oxford Journal of Legal Studies, Vol. 21, No. 3, pp. 473-494, 2001. Available at SSRN: https://ssrn.com/abstract=821619

Dori Kimel (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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