Contract Law and Public Justification

Abstract

In Justice in Transactions and elsewhere, Peter Benson presents his theory of contract law, “contract as a transfer of ownership”, as being capable of providing a public basis of justification for court decisions on contracts. In this article, I argue that Benson’s theory of public justification of judicial decisions is a sort of consensus theory according to which public justification requires reasons shared by the justificatory constituency or members of the public. In Benson’s case, certain reasons are taken as shared because they are constitutive of the practice of contract law. One of the main theses of the article is that, for Benson’s theory of public justification to hold, the public justification must be composed only of those citizens for whom the practice of contract law as a whole is legitimate. The exclusion of other citizens (that is, those who regard contract law as illegitimate), however, does no greater damage to Benson’s theory. In addition, I also argue that considerations about the public justification of judicial decisions do little to defend the thesis that contract as a transfer of ownership is the best interpretive theory of contract law.