Revisiting Unconscionability: Reciprocity and Justice

Abstract

This is a working chapter for the "Christianity and the Law" series published by Cambridge University Press. Written at an introductory level, it aims to demonstrate that the contract law doctrine of unconscionability finds its warrant in the virtues of reciprocity and justice. These virtues came to be part of the Western tradition of law in the eleventh century as scholastic theologians and jurists wove together strands of biblical revelation, Roman law, and Aristotelian commutative justice. The culmination of this project — the civil law doctrine of laesio enormis (rough equality in exchange) — remained unaffected by the Protestant Reformation. Because justice in exchange was a matter of conscience as well as law, it played a role even in the common law tradition. The gradual subjectivization of conscience and the displacement of justice in contract law by notions of utility and autonomy through the course of the nineteenth century lead to the disappearance of unconscionability in the common law. Unconscionability was resuscitated in Article 2 of the Uniform Commercial Code but its application is has proved uncertain and unpredictable. A return to a virtue-centered understanding of unconscionably — rough equality in exchange — would make unconscionability more certain and predictable.