University of New South Wales Faculty of Law Research Series
University of New South Wales Faculty of Law Research Series 2009
Towards Contractual Pluralism
Article comments
This paper may be referenced as [2009] UNSWLRS 28.
Abstract
This article challenges monist theories of contracting that are dominated by such ‘super’ norms as the wills, consent or promises of the parties, or the efficiency of their transactions. It argues instead for a plural theory of contracting that identifies, ranks and applies a plurality of political, cultural and moral values, giving rise to a more richly textured, collaborative and contextual theory of contracting than under legal monism.
Devised to suit Nineteenth Century values, monist theories subject all contract rights to a single determinative or ‘super’ value, such as the liberty to contract. That ‘super’ value is expressed, for example through the wills of the parties to contract, or through the utility of their contracts. The result is a unitary theory of contracting in which one value prevails over all others. If liberty to contract is treated as the ‘super’ value, all other values are subordinated to it.
This article maintains that these monist theories of contracting fail to meet the demands of an increasingly complex legal order. Striving for a more richly textured alternative, it proposes a theory of value pluralism that engages a range of values, beyond a single ‘super’ value like liberty or equality in contracting. It argues that decision agents – notably courts – can identify plural values that are materially related to the issues in dispute. They can rank those values in proportion to their impact on the issues; and they can apply them through a process of deliberative reason and prudential judgment.
The article concludes by proposing a theory of cultural pluralism that is more transaction sensitive, more vibrant and more sustainable than narrow theories of legal monism.
Subject Area
Contracts, General Law
Recommended Citation
Leon Trakman,
"Towards Contractual Pluralism"
(August 2009).
University of New South Wales Faculty of Law Research Series.
University of New South Wales Faculty of Law Research Series 2009.
Working Paper 28.
http://law.bepress.com/unswwps/flrps09/art28
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