چکیده:
Traditional or liberal contract theory has always faced serious criticisms. This article attempts to critique liberal contract theory within the framework of the critical school of law and based on the theory of Roberto Unger, one of the pioneers of this school, and to analyze its challenges. Unger's theory consists of a principle and an anti-principle, which involves a kind of opposition between them; contractual freedom is the principle that stands against the anti-principle of sociality and the anti-principle of contractual justice and fairness. The central point of Unger's theory is that since the principle of contractual freedom is a pure validity, it should not be given authenticity. Social realities and necessities can limit these validities and conflict with them. Therefore, to create balance, realities should be prioritized over validities. Considering that the critical school is based on realism, principles such as the principle of good faith in contract performance, the principle of contractual justice and fairness, and the principle of non-harm should be understood in opposition to the principle of contractual freedom and considered as anti-principles.
خلاصه ماشینی:
Given that the critical school is based on realism, principles such as the principle of good faith in contract performance, the principle of contractual justice and fairness, and the principle of non-harm should be understood in opposition to the principle of contractual freedom and considered as anti-principles.
Principle of contractual freedom, principle of contractual justice and fairness, critical legal school, traditional contract theory Corresponding Author Fax: +98 3137935121 Email: m_shahabi@ase.
Among the scholars of the critical school, a discourse called critical legal theory emerged 1 which questioned many of the theories raised in discussions of legal philosophy, including Hobbes’ natural rights, Locke ٢ ٣, Austin ٥ and Bentham ٦’s laws as commands ٤, and Ronald Dworkin ٨’s law as interpretation ٧, Rousseau and natural justice (Hunt, 1986, p.
Research in critical legal theory shows that the main goal of this theory is to fight against the foundation of law on innate rationality and to fight against the generality of law; because on the one hand, innate rationality can lead to the superiority of the principle of freedom of will and the principle of contractual freedom as pillars of traditional contract theory over principles such as the principle of justice and contractual fairness (Shahabi, 1393, p.
Roberto Unger, as one of the pioneers of the critical legal school, bases his theory on placing the counter-principle of community and the counter-principle of justice and fairness in the contract against the principle of freedom of will and the principle of contractual freedom, in order to integrate law with the fabric of social life and remove it from pure abstraction, giving it a realistic and functional aspect.
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