Philosophical methods in contract law

Johan Vorland Wibye

Chapter 4 in Research Methods for Contract Law and Scholarship, 2025, pp 90-114 from Edward Elgar Publishing

Abstract: This chapter provides an overview of contract theories and their methodological commitments. It distinguishes conceptual contract theory—analytical engagement with the rights and obligations that make up contracts—from normative theories that posit an organising moral principle at the core of contract law. The major fault-line within normative theories runs between intrinsic theories of contract, anchored in the morality of promise, harm-avoidance, autonomy, contractual relationships, or consent, and instrumental theories, where the law and practice of contract are structured around welfare maximization. The chapter examines the interplay of conceptual and normative analyses and potential benefits of joint approaches. It argues, furthermore, that normative contract theories do not have to be treated as mutually exclusive. Nor should they be judged exclusively on the basis of their coverage. The relative strengths and weaknesses of available theories can instead be used to shed light on different facets of legal doctrines and practices.

Keywords: Contract theory; Hohfeldian analysis; Promise; Harm-avoidance; Economic analysis; Relational theory (search for similar items in EconPapers)
Date: 2025
ISBN: 9781035316465
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