Contract is a central trope in the organization of modern society. For too long, contract theory has avoided presenting a justification of contract that is ambitious enough to account for this centrality. Happily, this situation is changing, as private law theory is in the midst of refiguring the relationship among contracts, markets, and morality. Recently, a number of unrelated works have advanced both explanatory and justificatory arguments that draw tight connections among the three. Despite divergent starting points and theoretical predilections, the theories converge in characterizing the way that markets value everything in their orbit: impersonally, diffusely, and abstractly. They posit a common vision of the market in which value emerges without coordination, without discussion, and without agreement as to its meaning, motive, or cause. This article analyses these theoretical innovations, offers a brief critique, and then develops a more ambitious alternative. It suggests that contracting in markets can be a site of reasoned discussion about what the market should achieve rather than exclusively a single-minded means to maximize returns. Markets are at times an opportunity to recruit others to our projects, not only because they are financially profitable but also because they are normatively attractive. And that recruiting is a form of politicizing markets by exercising voice without invoking the need for public command. The market itself can be a site of collaborative ventures that accentuate self-government rather than bracketing value.
Voicing the market: Extending the ambition of contract theory
This article benefited from generous and insightful commentary from many readers, including participants at the Private Law Theory Workshop at Tel Aviv University, the Legal Theory Workshop at Yale Law School, the law faculty seminar at Tel Aviv University, and the Intensive Doctoral Week Workshop at SciencesPo. I am grateful for their input. For conversations and comments on early drafts, I am particularly indebted to Leora Bilsky, Yishai Blank, Ora Bloom, Hanoch Dagan, Christine Desan, Avihay Dorfman, Talia Fisher, Dalit Flaiszhaker, Alon Jasper, Tamar Kricheli-Katz, Doreen Lustig, Guy Mundlak, Nadav Orian Peer, Ariel Porat, Issi Rosen-Zvi, David Schorr, Hila Shamir, Ohad Somech, Mickey Zar, and Neta Ziv. For excellent, and especially patient, research assistance, my thanks to Avital Rosenfeld.