Freedom of choice and paternalism in contract law: a law and economics perspective

Abstract

This paper is a preliminary discussion of some theoretical and methodological issues related to my PhD thesis. The topic of the dissertation can be succinctly formulated as the legal and economic analysis of paternalism in contract law. The thesis starts with some discussion of conceptual and normative issues of paternalism in political and legal philosophy, and then focuses on legal policy questions in contract law. Methodologically, my purpose is to analyse whether and how the traditional economic arguments against paternalism and for freedom of contract should be reassessed in light of recent empirical and theoretical studies. More specifically, the question is whether the anti-paternalist view based on consumer sovereignty remains valid if, following behavioural decision theory we assume that not only (at least one of)the contracting individuals but also the legislator/regulator is imperfectly rational or not fully informed. That is, whether we have to modify the traditional anti-paternalism of law and economics for anti-anti-paternalism: a limited and critical version of paternalism. In this paper I discuss the conceptual and methodological background of an economic approach to paternalism in contract law.paternalism, contract regulation,