Joseph W. Singer, Things that We Would Like to Take for Granted: Minimum Standards for the Legal Framework of a Free and Democratic Society, 2 Harv. L. & Pol'y Rev. 139 (2008).
Abstract: We live in an age that glorifies the free market, small government and freedom of contract. Regulations are viewed as interferences with liberty and mandatory terms in contracts are derided as paternalistic interferences with autonomy. This free market model fails adequately to describe either our settled social values or our law. If we recognize the truism that there is no liberty without law, we will see that even our most libertarian states have comprehensive networks of regulations that set minimum standards for economic relationships. Rather than asking, Why interfere with freedom of contract? We would do better to recognize that all contracts are subject to minimum standards regulations and ask, What are the minimum standards for transactions of this sort? Some minimum standards merely set rules of the road; others, however, shape the contours of our way of life. We impose minimum standards regulations, not because government officials know better than individuals what is in their own best interest, but because we live in a free and democratic society and such a society promotes social relations of a certain type; this means that certain contract terms are out of line and certain contract demands must be taken off the table. Mandatory contract terms do limit our freedom to agree to contrary terms but we as a society demand those mandatory terms to create the legal framework of a free and democratic society that treats each person with equal concern and respect. We cannot create such a society by deferring to preferences, whatever they happen to be; some preferences cannot be indulged in a free and democratic society. Identifying appropriate minimum standards requires us to go beyond economic and legal theory by using useful aspects of moral and political philosophy, in conjunction with law, to shape the contours of our way of life.