Failure of Normative Contract Theory

Peter A. Alces

in A Theory of Contract Law: Empirical Insights and Moral Psychology

Published in print March 2011 | ISBN: 9780195371604
Published online May 2011 | e-ISBN: 9780199893447 | DOI:
Failure of Normative Contract Theory

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A viable unifying theory of contract would be useful as a heuristic device: It would provide intellectual leverage and could determine both how doctrine should be applied and predict how it will be applied. But contract does not hue to a single normative theory; it is, instead, dependent on an accommodation of deontic and consequentialist inclinations. The nature of contract is revealed through understanding the reason why unitary theories have been inadequate. This chapter examines the theoretical inquiry and suggests why extant theory fails to account for all of contract. The actions of human agents may best be explained as the product of a combination of consequentialist and non-consequentialist impulses. It may be possible to understand contract doctrine as a means to facilitate an empirical morality.

Keywords: contract theory; contractarianism; aretaic theory; communitarian theory; consequentialism; deontology; human agency; rational choice theory; behavioural decision theory; empirical morality

Chapter.  5601 words. 

Subjects: Company and Commercial Law

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