How Well Do We Treat Each Other in Contract?

One of the important contributions of Nathan Oman’s new book is to draw focus onto the quality of the relationships enabled by contract. He claims that contract, by supporting markets, cultivates certain virtues; helps facilitate cooperation among people with diverse commitments; and produces the wealth that may fuel interpersonal and social justice. These claims are all plausible, though subject to individual challenge. However, there is an alternative story to tell about the kinds of relationships that arise from markets--i.e., a story about domination.

The experience of domination is driven in part by the necessity, inequality, and competition enjoined by markets, and partly by the very structure of authority created by legally binding promise. Oman is right to look to markets for the normative character of contract but the ethics of contract are more ambiguous than he allows.