This course has two main goals. The first is to alert law students to the philosophical complexities underlying a body of law that is easily taken for granted. The second is to give students of philosophy a glimpse of the richness of the law as a source of insight and intuitions about philosophical questions of very general interest.
Our focus will be on exploring various limitations to the freedom of contract in a market economy. Not all contracts are enforceable, and sometimes the restrictions on freedom of contract derive from specifically moral considerations. Some of these restrictions seem to derive from restrictions on the kind of thing that is being exchanged: some have thought, for instance, that contracts for surrogacy, or for the sale of body parts, are morally dubious and perhaps ought not to be legally enforceable. Other restrictions seem to derive from the conditions under which a contract is made: contracts induced by coercion and deception are deemed invalid. Still other restrictions seem to follow from substantive features of the terms of the contract, for instance in the claim that “unconscionable” contracts cannot be enforced because they are unfair or exploitative.
In this course we will explore the question of how such restrictions to freedom of contract might be justified. This will require, in part, close attention to some of the concepts just invoked– in particular, those of coercion, deception, and exploitation. It will also require us to address the more general question of the relationship between contract law and theories of distributive justice. We will pay great attention throughout to comparative legal material.