The essay has two main objects. The first is to take up and to develop certain of the difficulties that Professor Trebilcock finds with autonomy and welfare-based theories of contract law. The essay reaches the conclusion that efficiency, autonomy, and welfare approaches suffer from fundamental and yet qualitatively different kinds of defects. Moreover, in the course of its critical examination of these theories, the essay introduces and makes explicit an ideal of justification which The Limits of Freedom of Contract only implicitly assumes-an ideal of justification which the essay, following the recent work of Rawls, calls a public basis of justification. A public basis of justification purports to incorporate only normative ideas and principles that are present, even if just latently, in the public legal or political culture, and it seeks to show how these ideas and principles may be suitably combined into a coherent and reasonable conception. The second main object of the essay is to provide a sketch (rather than a full discussion) of what a public basis of justification of contract might look like, how it might be developed, and in what way it would elucidate particular doctrinal issues, such as the appropriate measure of contract damages and the legal consequences of non-disclosure, mistake, or frustration. A central premise of the essay is that a public justification of contract is the indispensable first step in theorizing about contract law because it alone can provide theory with a shared, pre-theoretical conception of contract that is fully rooted in and internal to the law. However, despite the need for such a justification, one has yet to be developed
