ABSTRACT
Judges in judicial review cases in New Zealand and the UK currently begin with the presumption that the existence of a contract means that the matter should be treated as a private law one – at least in the absence of a special ‘public element’. This article argues that all contracts with government entities should be treated as presumptively public. Such a position can be justified by recourse to liberal contract theory. Arthur Ripstein’s Kantian theory identifies the critical role of the state in securing the background conditions for the operation of private law. These are unsettled when a government entity is one of the parties to a contract.
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Janet M McLean, For a Law of Public Contract Per Se: An Intervention from Liberal Contract Theory, Oxford Journal of Legal Studies. Published: 30 July 2019. https://doi.org/10.1093/ojls/gqz023.
First posted 2019-08-03 15:19:51
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