Justice in Transactions: A Public Basis for Justifying Contract Law?

Abstract

This paper challenges Peter Benson’s claim that his theory of justice in transactions can provide a public basis of justification in the Rawlsian sense specifically worked out for contract law. It argues that Benson’s distinct conception of the contracting parties and their relationships makes it an unlikely candidate for public justification in contemporary liberal democracies that are characterized by the fact of a reasonable pluralism of worldviews. Moreover, Benson’s method of deriving principles of contractual justice from existing contract law doctrines and principles risks pre-empting any critical potential for normative contract theory. In addition, its quasi universalism seems difficult to match with the political autonomy of citizens in democratic societies. Finally, Benson’s understanding of contract law as separate from politics appears at odds, not merely with Rawlsian political justice, but with the very idea of public justification.