Democratic Theory and the Legislative Fragmentation of Contract Law


Dr Arie Rosen

Faculty of Law

Project code: LAW001

The contemporary law governing contractual relationships is highly fragmented. Recently, leading American scholars have gone as far as to argue that what is normally considered to be “general contract law” is little more than the law regulating commercial transactions between businesses: relationships between individuals and businesses are almost comprehensively regulated by subsidiary, specialised fields. This claim is in line with a longstanding view, expressed in the UK, concerning the twentieth-century decline of the freedom of contract.

This project looks closely at the legislative processes that have led to this fragmentation of modern contract law, tracing the role played by democracy in shaping a fragmented landscape. It contrasts the vibrant political process surrounding the legislation in two distinct fields—employment and consumer protection—with the technical, lawyerly mode in which general contract law doctrine is often developed. It then uses this description to develop a normative argument regarding the role democracy plays in shaping private law in common law jurisdictions.

This is an opportunity for aspiring scholars to be full participants in cutting edge research in the fields of contract law, democratic theory and theory of private law. Primarily, scholars will be asked to look into the legislative history of key American and English statutes in the fields of employment law and consumer protection law. They will be asked to characterise and evaluate these histories in light of contemporary theories of democracy, as guided by the supervisor. The nature of the project requires a high level of competence in the English language.