Republican Contract Law

Abstract

This chapter distinguishes two accounts of how and why areas of law are individuated. The first view, ‘conventionalism’, says that individuation serves epistemic ends. Conventionalists claim that legal officials carve up areas of law to promote the rule of law by making it more digestible, easier to follow, handle, and so on. In contrast, the second view, ‘foundationalism’, is a metaphysical interpretation of the practice. Foundationalists claim that individuation is part of the very fabric of law. On this view, areas of law track basic moral principles or categories, such as promise, corrective justice, and so on, which shape and structure legal norms. Having claimed in Chapter 3 that foundationalism—in the guise of the ‘promise theory’—fails as an account of contract law, this chapter argues that conventionalism is not the only alternative. Instead, a third possibility—‘republicanism’—is explored, which the chapter calls ‘republicanism’. Ronald Dworkin argued that legal categories are connected with ‘positive morality’ or popular views about the moral principles, categories, and distinctions that legal categories implicate. This serves the purpose of involving ordinary citizens in legal and political decision-making about matters of principle that are usually the preserve of the courts. This reveals a very often overlooked republican strand to his legal theory, which opens the door to a ‘bottom-up’ theory of contract law more sensitive to the multiplicity of moral values and concerns that shape its rules and doctrines in particular jurisdictions and times.