University of Virginia Legal Working Paper Series
University of Virginia John M. Olin Program in Law and Economics Working Paper Series
Rawls & Contract Law
Abstract
The paper proceeds as follows. In Part II, we introduce Rawls’s notion of primary goods and their distribution via what Rawls terms the basic structure. First, we attempt to explain Rawls’s likely motivation for introducing the notion of the basic structure, which (arguably) limits the domain of the two principles of justice. Second, we introduce the confusion over which institutions are, in Rawls’s view, within the bounds of the basic structure. In Part III, we return to the relationship between conceptions of contract law and the narrow view of the basic structure. Part IV takes up the relationship between Rawls’s first principle of justice and contract law. Here, we analyze whether contract law might be required by Rawls’s first principle of justice. Next follows Part V, in which we analyze the relationship between the difference principle and contract law. We argue for a “broad” conception of the basic structure and explain that contractual matters which appear (from the inside) to be “free” of state regulation within a Rawlsian scheme are nevertheless within the basic structure. In Part VI, we analyze what it means for contract law to reside within the basic structure, emphasizing that this does not entail that individual contracts or contract doctrines need to pattern the difference principle. Part VII takes up an important objection to our view of how contract law is to be constructed within a Rawlsian scheme. We raise, but ultimately offer a solution to, concerns arising from the role of democracy in Rawlsian political philosophy. Part VIII provides an example of how our view of Rawlsian contract law might operate by considering the doctrine of (substantive) unconscionability. Next, in Part IX, we consider the relationship between the opportunity principle and contract law. Part X offers our conclusion.
Subject Area
Contracts, Law and Economics
Recommended Citation
Kevin Kordana and David Tabachnick,
"Rawls & Contract Law"
(February 2005).
University of Virginia Legal Working Paper Series.
University of Virginia John M. Olin Program in Law and Economics Working Paper Series.
Working Paper 15.
http://law.bepress.com/uvalwps/olin/art15
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