Abstract
This chapter situates contract law in terms of what John Rawls calls “the social division of responsibility”: society as a whole has to provide individuals with an adequate share of opportunities and resources that they need in order to set and pursue their own conception of the good. Once individuals have those fair shares, citizens have to take responsibility for how their own lives go. An important way that people may pursue their plans is by entering into arrangements with others. This requires a system of contract rules. I argue that justice requires that we understand contract rules in terms of the idea of fair terms of interaction—that is, terms that would be accepted by reasonable persons moved by a desire for a social world in which they, as free and equal, can cooperate with others on terms they accept. The underlying idea is that of reciprocity, that is, the idea that individuals should not set the terms of their interactions with others unilaterally. I claim that contractual interactions should be approached from the perspective of the reasonable person.
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Notes
- 1.
This point is made by Arthur Ripstein in “Justice and Responsibility” (2004), 17 Can. J. Law & Jur. 361 at 368.
- 2.
See Rawls, A Theory of Justice, rev. ed. (Cambridge: Harvard University Press, 1999), 72.
- 3.
Will Kymlicka, Contemporary Political Philosophy: An Introduction (New York: Oxford University Press, 1990), 56.
- 4.
Rawls, supra note 2 at 73.
- 5.
This is Rawls explaining his own views. See Rawls, Justice as Fairness—A Restatement (Cambridge: The Belknap Press of the Harvard University Press, 2001), 74.
- 6.
Idem at 74–75.
- 7.
See Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985), 207.
- 8.
See Roberto Gargarella, Las Teorias de la Justicia Después de Rawls: Un Breve Manual de Filosofía Política (Buenos Aires: Editorial Paidós, 1999), 41.
- 9.
Dworkin makes a similar point in “Equality, Luck and Hierarchy” (2003), 31 Phil. & Pub. Aff. 190 at 196.
- 10.
Rawls, supra note 5 at 76.
- 11.
See Samuel Scheffler, “What is Egalitarianism?” (2003), 31 Phil. & Pub. Aff. 5 at 26–27.
- 12.
Ibid.
- 13.
Rawls, “Justice as Fairness: Political But Not Metaphysical,” in John Rawls: Collected Papers,ed. Samuel Freeman (Cambridge: Harvard University Press, 1999), 388 at 398.
- 14.
Ibid. at 396.
- 15.
Rawls, supra note 5 at 9.
- 16.
Idem at 24.
- 17.
Ripstein, Equality, Responsibility, and the Law (Cambridge: Cambridge University Press, 1999), 12, n. 8.
- 18.
Rawls, supra note 5 at 24.
- 19.
Idem at 18–19.
- 20.
Idem at 19.
- 21.
Idem at 24; see also Rawls, Political Liberalism (New York: Columbia University Press, 1993), 19.
- 22.
See Rawls, supra note 5 at 23.
- 23.
Ibid.
- 24.
Rawls, supra note 12 at 407.
- 25.
Rawls, supra note 5 at 23.
- 26.
Ibid.
- 27.
Idem at 20.
- 28.
Rawls, supra note 2 at 509.
- 29.
Idem at 506.
- 30.
Idem at 506–507.
- 31.
Rawls, supra note 20 at 50.
- 32.
Ibid.
- 33.
Idem at 50–51.
- 34.
Ibid.
- 35.
Idem at 52.
- 36.
Ibid.
- 37.
Ibid.
- 38.
John Rawls, “Social Unity and Primary Goods,” in Utilitarianism and Beyond, ed. Amartya Sen and Bernard Williams (Cambridge: Cambridge University Press, 1982), 159 at 170.
- 39.
Arthur Ripstein, “Private Order and Public Justice: Kant and Rawls” (2006), 92 Virginia L. Rev.1391.
T. M. Scanlon explains the division of responsibility in the following way:
The “basic structure” of society is its legal, political, and economic framework; the function of which is to define positions to which different powers and economic rewards are attached. If a basic structure does this in an acceptable way—if citizens have no reasonable complaint about their access to various positions within this framework or to the package of rights, liberties, and opportunities for economic reward that particular positions present—then that structure is just. It is up to individuals, operating within this framework, to choose their own ends and make use of the given opportunities and resources to pursue those ends as best they can. How successful or unsuccessful and happy or unhappy they are as a result is their own responsibility.
See T. M. Scanlon, What We Owe to Each Other (Cambridge: Harvard University Press, 1998) at 244.
- 40.
I borrow this point from Arthur Ripstein, “The Division of Responsibility and the Law of Tort” (2004), 72 Fordham L. Rev. 1811.
- 41.
Rawls, “Fairness to Goodness” in Rawls, supra note 12, 267 at 273.
- 42.
Arthur Ripstein, supra note 39 at 1838.
- 43.
Idem at 1838–1839.
- 44.
Rawls, supra note 20 at 268–69.
- 45.
Ibid.
- 46.
Rawls, supra note 5 at 51–52.
- 47.
Rawls, supra note 20 at 268.
- 48.
Ibid.
- 49.
Ibid.
- 50.
This account of private law and the division of labor contrasts with a different account that may be identified with Richard Epstein’s idea that private law is a matter of “simple rules for a complex world.” For Epstein, the rules of private law are chosen on the basis of utilitarian reasons. Like Rawls, Epstein argues that there are good reasons to make private law as simple as possible. It is this simplicity that makes it formal. See Epstein, Simple Rules for a Complex World (Cambridge: Harvard University Press, 1995). Rawls’ remarks about the need to have simple and practical rules of private law may invite an interpretation of his account of private law that is similar to Epstein’s account of private law. As I mentioned, Rawls says that the rules of private ordering “are framed to leave individuals free to act effectively in pursuit of their ends and without excessive constraints.” Rawls, supra note 20 at 268. However, as Ripstein explains, “[t]he notion of freedom to act effectively is best understood in terms of reconciling the capacities of a plurality of persons to set and pursue their ends, rather than any aggregate notion of efficiency.” See Ripstein, supra note 38.
- 51.
Rawls, supra note 37 at 170.
- 52.
Ripstein, “Three Duties to Rescue: Moral, Civil, and Criminal” (2000), 19 Law and Phil. 751 at 765.
- 53.
Rawls, supra note 5 at 16.
- 54.
Idem at 16–17.
- 55.
See Ronald Dworkin, “Justice and Rights”. In Taking Rights Seriously (Cambridge: Harvard University Press, 1977), Chap. 6. Although it may seem as if Dworkin is criticizing Rawls, in fact he wants to defend him. Rawls explains that, for Dworkin, the original position is a useful device because it models “the force of the natural right that individuals have to equal concern and respect in the design of the political institutions that govern them.” See Rawls, supra note 12 at 400, n. 19.
- 56.
Rawls, supra note 5 at 17.
- 57.
Rawls, supra note 12 at 401.
- 58.
Rawls, supra note 37 at 162.
- 59.
This point was originally made by Thomas Pogge in “Three Problems with Consequentialist Ways of Assessing Social Institutions” (1995) 12 Soc. Phil. & Policy 241. I borrow this idea from Ripstein, supra note 39 at 1823.
- 60.
Ripstein makes the same point but in relation to tort law. He claims that, behind the veil, parties are unable to see the difference between harms that we suffer through the wrongdoing of someone else—for which the wrongdoer should be responsible—and harms in general. See ibid.
- 61.
Rawls, supra note 5 at 42.
- 62.
Idem at 42–43.
- 63.
For more on this point, see Benson, “Abstract Right and the Possibility of a Non-distributive Conception of Contract: Hegel and Contemporary Contract Theory” (1989), 10 Cardozo L. Rev. 1077 at 1141, n. 92.
- 64.
Rawls, supra note 5 at 105.
- 65.
Idem at 75.
- 66.
Idem at 58–60.
- 67.
Ripstein, supra note 16 at 277. Here, it is important to point out that the list of primary goods is not entirely specified in the original position. Rawls puts it in the following way: “It suffices…that in the original position the general form and content of the basic rights and liberties can be outlined and the grounds of their priority understood. The further specification of those rights and liberties is left to the constitutional, legislative, and judicial stages as more information is available, and particular social conditions can be taken into account. In outlining the general form of basic rights and liberties, we must make their special role and central range of application sufficiently clear so that at each later stage the process of specification is guided in a suitable way.” See Rawls, supra note 5 at 172.
- 68.
Ibid.
- 69.
Rawls, “Fairness to Goodness” supra note 12 at 271.
- 70.
Idem at 272.
- 71.
Rawls, supra note 37 at 171.
- 72.
There is a third sense in which persons are free: “they regard themselves as being entitled to make claims on their institutions so as to advance their conceptions of the good (provided these conceptions fall within the range permitted by the public conception of justice.)” See Rawls, supra note 5 at 23.
- 73.
Rawls, “Fairness to Goodness” supra note 12 at 272.
- 74.
Of course, people can also decline to exercise these liberties. For instance, nobody has the legal power to prevent me from becoming a life member of a religious sect. But what I’d like to emphasize is that I could not contractually transfer basic liberties. (See Samuel Freeman, “Illiberal Libertarians: Why Libertarianism Is Not a Liberal View” (2001), 30 Phil. & Pub. Aff. 2 at 110.). That agreement would not be legally enforceable. Or, you and I may dislike it if, as a matter of fact, people were to choose to enslave themselves to others. Regardless, an agreement to forfeit one’s freedom of association could not be “publicly” enforced.
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Hevia, M. (2013). The Division of Responsibility and Contract Law. In: Reasonableness and Responsibility: A Theory of Contract Law. Law and Philosophy Library, vol 101. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4605-3_5
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