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.