Kronman on Contract: A Study in the Relation Between Substance and Procedure in Normative and Legal Theory

Abstract

Anthony Kronman’s 1980 article “Contract Law and Distributive Justice” has become something of a classic in the philosophy of private law. Kronman argued that any theory of contract which relied upon voluntariness was necessarily concerned with distributive justice, since voluntariness was itself a distributive notion. The argument targeted libertarian accounts of contract. Given the distributive nature of voluntariness, the claim went, libertarians could not give an adequate account of contract without violating their own injunction against appeal to the “fair division of wealth among the members of society”(472). It is easy to see why Kronman’s article attracted so much attention. The idea that voluntariness is not distributive is central not just to libertarianism but to liberalism generally. Kronman’s critique, though targeting a not terribly common species of liberalism, threatens the genus itself.