Contracts, markets, and justice

Abstract

Peter Benson’s Justice in Transactions offers a compelling internal, non-instrumental Hegelian conception of the law of contracts. It also connects this non-instrumental conception with broader issues like the social theory of the market, liberal justification, and socio-economic justice. The book is a remarkable achievement. As such, it will – and should – become part of the canon of contract theory. In this review essay, I focus on the theoretical status of the reconstruction offered by Benson in Part I of the book. I am sympathetic to the ‘juridical’ starting point of Benson’s theory and agree that contract law and its doctrinal categories should be taken seriously. However, I argue that Benson’s theory sits at a middle position between a doctrinalist account and a full-blown philosophical theory of contracts and that this detracts from its ability to provide an adequate public justification of contract law as a legal institution. Finally, I cast some doubts on Benson’s account of the relationship between his juridical conception of contract and markets and distributive justice.