LEGAL THEORY WORKSHOP
Presents:
Sabine Tsuruda
Queen's University
RESISTANCE AND RECOGNITION IN CONTRACT
Friday, October 16, 2020
12:30 - 2:00 PM
Zoom Meeting
https://zoom.us/j/93506031777?pwd=TjFkcHlaQkNNcG9ORmdDcC9SU2ZJZz09
Meeting ID: 935 0603 1777
Passcode: 399660
Abstract: This paper motivates and lays groundwork for a liberal recognitional theory of contract according to which contractual rights mark out each of us as entitled to participate in commercial and collaborative life as equals. It does so through a critique of liberal contract theories that hold that contract law should be developed and applied largely in abstraction of social inequality, such as systemic racism and other structural injustices. Using the unconscionability doctrine to illustrate, I argue that social inequality, particularly structural injustice, does not reside in the “background” of contractual relationships. Rather, structural injustice is a central part of our rational landscape. Ignoring such an important source of reasons for people who live subject to structural disadvantage risks representing them as irrational and obscures the moral character of exploitative contracts. Instead, I argue that the unconscionability doctrine should permit parties to invoke structural injustice to explain their actions and the exploitative character of a given contract. Such a reconceptualization of unconscionability would be transformative. By partially specifying what counts as unconscionable in terms of liberal democracy’s commitment to substantive equality, unconscionability would not deploy standards of fairness based on local “mores” and commercial norms (which tend to reflect the views of advantaged members of society), but instead would deploy standards based on public reasons—reasons we could all accept as free and equal members of society. Victims of exploitation made possible by structural injustice would therefore no longer need to rely on “the uncertain and fitful protection of a world conscience” when legislated rights are inadequate. They could instead invoke a common law right to resist legal enforcement of exploitation. Implementing such a right of resistance would thus be a step toward establishing a cooperative paradigm of contract, one that has as its normative baseline a substantive relational ideal of free and equal cooperators, and that is guided by an ideal of recognition.
Sabine Tsuruda is an Assistant Professor at Queen’s Law. She graduated from the Joint JD/PhD Program in Law and Philosophy at UCLA, where she studied as a Charlotte W. Newcombe Doctoral Dissertation Fellow and served as a Senior Editor of the UCLA Law Review. Prior to joining Queen’s, she was a Predoctoral Fellow in Law and Philosophy at UCLA. She also holds a BA in Political Science and a MA in Philosophy from Stanford University.
PLEASE NOTE:The Legal Theory Workshops are not open to the general public. We welcome individuals affiliated with the Faculty of Law and closely related departments, including political science, philosophy, criminology, history and the Centre for Ethics. All other individuals interested in attending must seek prior approval from the organizers of the workshop.
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