The Public of Contract, and of its Justification

Abstract

Abstract In his most enlightening book Benson undertakes to give a public justification of contract law, which he distinguishes from a philosophical justification. This essay argues that this opposition is unsound. Benson’s justification is philosophical because it is internal: the justification contract provides for itself. As the justification is internal, the subject of the justification – those who, through it, understand the authority of contract – is the subject of what is justified: the subject of contract. This is the true public of the justification of contract law. And its justification to that public is nothing other than its philosophical justification. In a second step, the essay sketches how the justification of contract law develops so as to reveal its subject to be a concrete universal: civil society. Since that is understood in its philosophical justification, that, too, does not place the publicity of contract law in opposition to its philosophical understanding.