Liberalizing Contracts

In Liberalizing Contracts Anat Rosenberg examines nineteenth-century liberal thought in England, as developed through, and as it developed, the concept of contract, understood as the formal legal category of binding agreement, and the relations and human practices at which it gestured, most basically that of promise, most broadly the capitalist market order. She does so by placing canonical realist novels in conversation with legal-historical knowledge about Victorian contracts. Rosenberg argues that current understandings of the liberal effort in contracts need reconstructing from both ends of Henry Maine's famed aphorism, which described a historical progress "from status to contract." On the side of contract, historical accounts of its liberal content have been oscillating between atomism and social-collective approaches, missing out on forms of relationality in Victorian liberal conceptualizations of contracts which the book establishes in their complexity, richness, and wavering appeal. On the side of status, the expectation of a move "from status" has led to a split along the liberal/radical fault line among those assessing liberalism's historical commitment to promote mobility and equality. The split misses out on the possibility that liberalism functioned as a historical reinterpretation of statuses – particularly gender and class – rather than either an effort of their elimination or preservation. As Rosenberg shows, that reinterpretation effectively secured, yet also altered, gender and class hierarchies. There is no teleology to such an account.

Liberal theory of contract is traditionally associated with the view according to which contract law can be explained simply as a mechanism for the enforcement of promises. The book bucks this trend by offering a theory of contract law based on a careful philosophical investigation of not only the similarities,but also the much-overlooked differences between contract and promise. Drawing on an analysis of a range of issues pertaining to the moral underpinnings of promissory and contractual obligations, the relationships in the context of which they typically feature, and the nature of the legal and moral institutions that support them, the book argues for the abandonment of the over-simplified notion that the law can systematically replicate existing moral or social institutions or simply enforce the rights or the obligations to which they give rise, without altering these institutions in the process and while leaving their intrinsic qualities intact. In its place the book offers an intriguing thesis concerning not only the relationship between contract and promise, but also the distinct functions and values that underlie contract law and explain contractual obligation. In turn, this thesis is shown to have an important bearing on theoretical and practical issues such as the choice of remedy for breach of contract, and broader concerns of political morality such as the appropriate scope of the freedom of contract and the role of the state in shaping and regulating contractual activity. The book's arguments on such issues, while rooted in distinctly liberal principles of political morality, often produce very different conclusions to those traditionally associated with liberal theory of contract, thus lending it a new lease of life in the face of its traditional as well as contemporary critiques.

Abstract: May 1999 - Liberalization of services at the subregional level has followed two broad approaches-the GATS model and the NAFTA model-neither of which automatically guarantees the full liberalization of trade in services. The question that participants in integration efforts at both the subregional and the broader regional level must ask is what kind of approach to liberalizing services offers both maximum transparency and the greatest degree of nondiscrimination for service suppliers. Only since completion of the Uruguay Round have developing countries in East Asia and the Western Hemisphere shown interest in liberalizing services. Ambitious efforts are now being made to incorporate services in liberalization objectives of both subregional and regional integration efforts, including in the Asia-Pacific region under APEC and in the Western Hemisphere under the Free Trade Area of the Americas (FTAA) process. At the subregional level, member countries of both ASEAN (in East Asia) and MERCOSUR (in Latin America) have chosen to follow the liberalization model set forth in the World Trade Organization's (WTO) General Agreement on Trade in Services (GATS), and to open their services markets gradually and piecemeal. In the Western Hemisphere, Mexico has successfully promoted the NAFTA model of a more comprehensive liberalization of services markets-and several Latin American countries have adopted the same approach. Regionally, APEC has chosen a concerted voluntary approach to liberalizing services markets. Within the Western Hemisphere, participants are defining which approach they will use in the negotiations on services launched as part of the FTAA in April 1998. In all these efforts, a stated desire to promote more efficient services markets is often hindered by reluctance to open services markets rapidly or comprehensively because of historically entrenched protectionism in the sector and ignorance of the regulatory measures that impede trade in services. Presumably it would be easier to liberalize services at the subregional level, among countries at similar stages of development (although liberalization's economic value there might be questioned). Liberalizing services at the broader regional level is a difficult and ambitious goal, given the diversity of countries involved in such efforts. Thus liberalization will probably move more slowly at the regional than at the subregional level-perhaps even more slowly than at the multilateral level. It is possible that the new round of multilateral talks on services scheduled to begin under the WTO in 2000 may well eclipse the recently begun regional efforts. This paper-a product of Trade, Development Research Group-is part of a larger effort in the group to assist developing countries in the multilateral trade negotiations. The author may be contacted at [email protected].

Our legal system is committed to the idea that private markets and the law of contracts that supports them are the primary institutions for allocating goods and services in a modern economy. Yet the market paradigm, this book argues, leaves substantial room for challenge. For example, should people be permitted to buy and sell blood, bodily organs, surrogate babies, or sexual favors? Is it fair to allow people with limited knowledge about a transaction and its consequences to enter into it without guidance from experts?

First published in 1998, Public Procurement in the European Community has been considered as the most-important non-tariff barrier for the completion of the common market and its liberalisation reflects the attempts of law and policy makers to enhance competitiveness in the public sector and achieve uniform patterns of industrial efficiency. The opening-up of procurement stresses the fact that the Member States must embark upon a process of changing their public sector management ethos and adopt more market-orientated parameters (value for money, efficiency, improved risk management, market testing, outsourcing, private finance, savings) in the delivery of public services, alongside the principles of transparency and public accountability. The book is addressed to academics and researchers in the fields of law, public policy and government studies, legal practitioners, policy makers, government officials as well as industry executives. It provides a multi-disciplinary analysis of public procurement law and policy and assesses its impact on the European integration process. It investigates the implications of the opening-up of the European public markets on other legal and economic systems in the world and analyses the regulation of public purchasing as part of the emerging Economic Law of the European Union.

"Explores the concept of the social contract and how it shapes citizenship. Argues that the modern social contract is an account of the ethical and cultural conditions upon which modern citizenship depends"--Provided by publisher.

Is liberal democracy the end of history? Is a written constitution the ultimate political authority? Does majority rule equal moral rule? Are all moral values relative? What is the legitimate use of coercive force in society? The New Social Contract--Beyond Liberal Democracy offers an answer to these and other age-old questions. Even more important than theoretical answers, The New Social Contract offers a way to turn theory into practical reality, to join moral and political philosophy with the coercive force of the law of society and thereby create a society that provides the greatest possible opportunity for each and every individual to achieve his or her happiness.

“One of the most important contributions to the field of contract theory—if not the most important—in the past 25 years.” —Stephen A. Smith, McGill University Can we account for contract law on a moral basis that is acceptable from the standpoint of liberal justice? To answer this question, Peter Benson develops a theory of contract that is completely independent of—and arguably superior to—long-dominant views, which take contract law to be justified on the basis of economics or promissory morality. Through a detailed analysis of contract principles and doctrines, Benson brings out the specific normative conception underpinning the whole of contract law. Contract, he argues, is best explained as a transfer of rights, which is complete at the moment of agreement and is governed by a definite conception of justice—justice in transactions. Benson’s analysis provides what John Rawls called a public basis of justification, which is as essential to the liberal legitimacy of contract as to any other form of coercive law. The argument of Justice in Transactions is expressly complementary to Rawls’s, presenting an original justification designed specifically for transactions, as distinguished from the background institutions to which Rawls’s own theory applies. The result is a field-defining work offering a comprehensive theory of contract law. Benson shows that contract law is both justified in its own right and fully congruent with other domains—moral, economic, and political—of liberal society.