- Could a fair price rule (or its absence) be unjust? On the relationship between contract law, justice and democracy
- European Review of Contract Law
- Volume | Issue number
- 11 | 3
- Pages (from-to)
- Document type
- Faculty of Law (FdR)
- Centre for the Study of European Contract Law (CSECL)
This paper discusses the relationship between contract law, justice and democracy. In particular, it addresses the question whether the presence or absence of an unfair price rule could make a system of contract law, and thus the society to which it belongs, become unjust. The question is not merely a theoretical one, as recent legislative developments in EU contract law have illustrated. The main argument of the paper is that principles of justice that would be reasonably acceptable to all, as they should be in a society like our own which is characterised by a reasonable pluralism of worldviews, are unlikely either to prohibit or require an unfair-price rule, while the main existing substantive theories of justice that do clearly require such a rule (eg in the name of the virtue of corrective justice) or proscribe it (eg because of the value of liberty), are too partisan (‘too thick’) to be acceptable to citizens holding different reasonable worldviews. This means that a system of contract law can be just independent of whether or not it contains an unfair price rule. As a result, the question of whether our contract law should contain a fair price doctrine remains a matter for the legitimate democratic lawmaker to decide upon, in a debate where controversial worldviews are also admitted. The more procedural (‘thinner’) principles of justice will still require that the law can (and will at some point) be justified in non-sectarian terms, but given that such more neutral grounds are readily available on either side of the debate, both the presence and the absence of a fair price rule is compatible with a legitimate and just contract law regime.
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