Normative Conventionalism about Contracts

Normative conventionalism asserts that the nature of contracts and their normative force are primarily explained by reference to the normative force of conventions or institutions that create relations of contract. The normative force of the conventions derives from the system of such conventions satisfying several values such as freedom, justice, and efficiency. And the obligations of persons derive from the requirements that persons do their share to uphold the justice and efficiency of the convention by, in the first instance, treating each other in accordance with the norms of the practice as they have been laid down. This chapter attempts to defend normative conventionalism with a new argument and against some powerful critiques. It argues, first, that normatively desirable conventions can be the source of the special obligations of contracts, so that neither the fidelity view nor the normative powers view expresses a necessary condition on contractual obligations. Second, it argues that considerations of equilibrium in the system of contracts overall provide good reason for thinking that normatively desirable conventions are the grounds of a large swath of the contracts we see. Third, it argues that normatively desirable conventions either are the sole source of obligations or that such conventions gradually replace naturally produced obligations in an increasingly complex society. Finally, it argues that the fact that contracts create directed obligations, which is normally taken to be a consideration in favor of non-conventionalist approaches, actually provides support for conventionalism because such directedness is actually quite uneven among contracts.