Separate persons acting together: A theory of contract law.

摘要

This thesis explores the following question: if, as John Rawls famously suggests, justice is the first virtue of social institutions, how are we to understand the institution of contract law? On the one hand, many writers take the view that the rules of contracts are merely a tool for bringing about distributive justice; on the other hand, some libertarian writers contend that the rules of contract leave no space for any idea of distributive justice. I show that neither account is to explain key features of contract doctrine. My alternative account situates contract law in terms of what John Rawls calls "the social division of responsibility": society as a whole has to provide individuals with an adequate share of opportunities and resources that they need in order to set and pursue their own conception of the good. Once individuals have those fair shares, citizens have to take responsibility for how their own lives go. An important way that people may pursue their plans is by entering into arrangements with others. This requires a system of contract rules. My claim is that justice requires that we understand these rules in terms of the idea of reasonable, fair terms of interaction: contractual interactions are about what is fair for individuals in interaction with the others, and not about what is fair from the subjective point of view of each individual. Thus, the thesis explains contract doctrines, including those governing third parties, from the perspective of the reasonable person standard.