The idea of autonomy and the foundations of contractual liability

Law and Philosophy 2 (3):271-303 (1983)
Abstract
This paper examines a recurrent debate about the rationale of contractual liability: whether the central object of contract law is to facilitate human interaction by respecting individual choices, or if it is in large part to redistribute wealth, power, and advantages generally. The debate between defenders of freedom of contract and those who would use contract law to advance schemes of redistribution is connected to the long-standing issues between natural-law theories and legal positivism. This paper is divided into two main sections. In the first, the notion of individual autonomy is examined in light of the classical view, most recently advanced by Fried, that the rationale for enforcing contracts is connected to the respect for individual autonomy as such. There is also an examination of the notion of a collective concern, and what it is, from a libertarian point of view, that makes some social goals objectionably collective. The second part of the paper argues that the use of collective resources for the enforcement of contracts brings with it the authority to limit and shape enforcement in the interest of redistribution
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DOI 10.1007/BF00144948
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