Contract as a Transfer of Ownership and Public Justification: Two Models

• Published date: 01 September 2022
• Author: Leandro Martins Zanitelli
• Date: 01 September 2022
• DOI: http://doi.org/10.1111/raju.12361

© 2022 University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 35 No. 3 September 2022 (310–326)

Contract as a Transfer of Ownership

and Public Justification: Two Models

LEANDRO MARTINS ZANITELLI

Abstract. This article deals with Peter Benson’s claim that, unlike rival approaches such as

promissory morality and the economic analysis of law, the theory of contract as transfer of

ownership offers a public basis of justification for the coercive practice of contracts. The article

points out that this claim can be understood in two ways, each corresponding to a model of

public justification, namely, the avoidance model and the hermeneutic model. My ambition is

to show that the avoidance model is beset by certain difficulties not encountered by the herme-

neutic model, suggesting that the hermeneutic model is a more promising interpretation of the

idea of public justification as applied to contracts.

1. Introduction

Peter Benson presents his theory of contract as transfer of ownership as a theory

fit to serve as a public basis for justification. Although Benson places his theory of

contracts in the rich tradition of the common law, his ambition that this theory fulfill

the role of providing a public basis for justification appears to be original. No promi-

nent competing theory— such as the economic analysis of law, Charles Fried’s theory

of contracts as a promise (Fried2015), or the choice theory of contracts recently es-

poused by Hanoch Dagan and Michael Heller (Dagan and Heller2017)— claims the

same role for itself.

An exception is the democratic theory of contract law that has been advocated

by Martijn Hessenlink (see, e.g., Hesselink2015). Hesselink’s theory, however, dif-

fers crucially from Benson’s in that it is not a theory about the reasons for enforcing

contracts: It is not, in this sense, a theory of justification in contract- related court de-

cisions. Consequently, Hesselink does not claim, as Benson does, that certain reasons

for enforcing contracts— e.g., reasons immanent in certain contractual doctrines, such

as consideration and unconscionability— are qualitatively different from other rea-

sons, such as reasons based on autonomy or efficiency. Instead, Hesselink’s emphasis

is on procedure, to the detriment of reasons that can and have been put forward by

different theories as reasons capable of explaining (and justifying) the practice of

contracts. Even if its rules differ from some of these reasons, contractual law will be

legitimate, according to Hesselink(2015, 83), “[i]f all relevant reasons and arguments

(including moral and ethical arguments), made by people from different corners in

society, have had a fair and equal chance of influencing the contract law making

process.”

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Ratio Juris, Vol. 35, No. 3 © 2022 University of Bologna and John Wiley & Sons Ltd.

Contract and Public Justification

This article addresses this unique feature of Benson’s contract theory.1 My goal is

partly exegetical, being concerned to define what Benson understands as a public

basis of justification and his reasons for attributing this role to his theory of the con-

tract as a transfer of ownership. Although the idea of a theory of contracts as a public

basis for justification can be found in Benson’s writings prior to Justice in Transactions

(Benson2019), and in particular in “The Idea of a Public Basis of Justification for

Contract” (Benson1995), this is something about which the literature is silent. This

article aims to fill this gap, but it also wants to go beyond a mere exegetical task. By

proposing that contracts be subject to a standard of public justification, Benson in-

vites us to address the problem of justification in private law as part of a general

problem of public justification,2 one that since John Rawls’s Political Liberalism

(Rawls1996) has been seen as central to political philosophy. It is therefore worth

exploring the merits of this approximation between private law philosophy and po-

litical philosophy in general, regardless of the question of what is the best interpreta-

tion of Benson’s writings.

The article is organized as follows. Section 2 briefly sets out the theory of contract

as a transfer of ownership. Section 3 emphasizes passages in which Benson defends

his theory as a theory suited to serve as a public basis for justification (and criticizes

rival theories for their inability to play the same role). Section 4 cautions against un-

derstanding Benson’s critique of theories that do not provide a public basis of justifi-

cation for contracts as a circular critique and shows how to interpret Benson in ways

that avoid this circularity. In Sections 5 and 6, two different models of public justi-

fication are presented, the avoidance model and the hermeneutic model. Section 5

lists certain problems that plague the avoidance model, while Section 6 demonstrates

why these same problems do not affect the hermeneutic model. Although the article

does not provide sufficient arguments to conclude for the validity of the hermeneutic

model, the considerations made in these sections suggest that this model constitutes

a more promising strategy for a theory of contracts as a public basis of justification.

2. Contract as a Transfer of Ownership

Benson’s theory of contract as a transfer of ownership is an interpretive theory of con-

tract law. It is not, therefore, an ideal theory of contracts or of contract law as it ought

to be. What Benson sets out to demonstrate are certain common ideas underlying

1 My discussion of the concept of public justification in Benson’s theory of contracts will only

tangentially include references to the literature on public justification in general and public

justification in John Rawls in particular. Despite Rawls’s work being an acknowledged inspira-

tion, Benson(2019, 367) is quick to clarify that the nature of public justification can vary accord-

ing to its object. This suggests that Benson’s writings on this topic can be interpreted somewhat

independently of Rawls’s work. Another reason why Rawls’s writings remain in the back-

ground here is that, in my view, it is not clear with which of the two models contrasted in this

article, namely, the avoidance model and the hermeneutical model, Rawls’s theory of public

justification is more correctly associated. Although critics of political liberalism tend to link

Rawls to the avoidance model, perhaps a more charitable interpretation would lead to a differ-

ent conclusion. For an example of such an interpretation, in which Rawls’s theory is associated

with something similar to what I call the hermeneutic model, see James2014.

2 Like Benson, I use the terms “public basis of justification” and “public justification”

interchangeably.