Freedom of Contract, Properly Understood

Freedom of contract plays a key role in many of our legal and public debates, but its

meaning is rarely explicitly interrogated. Often it is simply assumed that freedom of

contract stands for the idea that the law should just enforce private deals and otherwise

get out of the way. Professor Hanoch Dagan argues that this libertarian understanding

of freedom of contract, shared by both friends and foes of a laissez-faire vision of

the law, presupposes a conceptually unnecessary and normatively impoverished

view of contract. Properly understood, the author claims, freedom of contract is the

right to pursue our voluntary joint plans – facilitated by autonomy-enhancing law that

offers an adequate range of normatively attractive contract types, protects our future

selves’ ability to re-write core life plans, and ensures relational justice, including a

measure of substantive equality.