Democratic contract law

Abstract

This article discusses the normative relationship between contract law and democracy. In particular, it argues that in order to be legitimate contract law needs to have a democratic basis. Private law is not different in this respect from public law. Thus, the first claim made in this article will be that also for contract law a democratic basis is a necessary condition for legitimacy. A fully democratic basis may also be a sufficient condition for a legitimate and just contract law. However, my argument in that regard is more conditional. If all relevant reasons and arguments (including moral arguments), made by people from different corners in society, have had a fair and equal chance of influencing the contract law making process, then the outcome may be hard to challenge on the basis of an external standard, such as justice, morality, tradition, efficiency or private law’s purported essential nature. These two claims, if successful, have important implications for contract theory. In particular, they lead to a largely procedural theory of contract law, which is pluralist with regard to contract law’s content: arguments based on party autonomy, weaker party protection, corrective justice, economic efficiency, or legal traditions, will have to demonstrate their strength within the democratic debate and cannot claim to represent some essential truth with regard to the nature of contractual obligation. The justice and legitimacy of contract law cannot be determined in advance by theoretical analysis but will have to establish itself within the democratic debate. Private law theorists have no privileged access to the truth of contract law and contractual justice.