Contract law concerns itself with agreements between private parties over certain mutual obligations that are enforceable by law. Patricia Williams is a lawyer who likes to call herself a “contracts teacher”. She has written several books on critical race theory and gender theory and has a monthly column in The Nation magazine. She has joined Northeastern University as a University Distinguished Professor of Law and Humanities.
According to Williams, contract law works well if, for instance, one is a handyman, setting the terms for a job one might do, or a retailer selling products. However, the boundaries of the contracts aren’t very clear in some cases, like when you’re trying to decide who the parents of a surrogate baby are, like a 1988 case. In fact, the framework of contract law was used to decide whether a person can be bought and sold in history. Williams is concerned that in the US, this “contract state of mind,” is being applied far too broadly.
“Contract law is a beautifully designed body of law, but it worries me when we take things out of our constitutional protections like our civil rights, our ability to have a public space and public accommodations in that space and apply to the contract law”, Williams says. She sees areas of society in which the framework of contract law is being squeezed around issues that perhaps it shouldn’t be. She’s concerned that a changing climate could mean scarcer resources. Williams believes that if we do not recognise the moral principle that we all ought to have a right to, like a public space, which is a constitutional claim, then our civil rights guarantees will slowly be taken away. Unless you consider it under constitutional law, a baker who doesn’t want to serve LGBTQ people, for example, might not have to.
“Contract, when it’s applied to full human engagement, may not be the best legal, or political, or governance vehicle through which to resolve some issues,” she concludes.
Shahjadi Jemim Rahman