ABSTRACT
The principle of free contract, that is the principle that neither the state nor any other public authority should interfere with voluntary contractual agreements of private parties, plays a pivotal role in modern economic thought regarding the virtues of markets, and in political philosophy dealing with desirable properties of their surrounding institutional environments. 1 The traditions supporting the underlying ideas are part of an extended history: volenti non fit iniuria is a principle of the Roman law tradition. In early modernity, it has become associated with a complex of concepts influential in the development of capitalist market societies. One of those is a conception of accountability. Its combination with the principle of free contracts gave rise to an idea lurking in the background not only of freemarketeering ideologies. It could be called ‘catallactic accountability’: according to this idea, an important or (as is not seldom believed by those who see the social world through the catallactic lens) the only meaningful form of accountability is mediated by contracts, markets and quasi-markets: everybody is made accountable for the outcomes of his or her actions (whose ultimate effect is contingent upon the choices of many other agents as well as the moves made by nature) by a web of contracts specifying appropriate (or ‘deserved’) individual consequences for everybody. Such reasoning implies that the market system is solving an encompassing imputation problem and is providing an adequate ‘mechanism of justice’ in a world of free agents and strategic uncertainty. More specifically, it implements the principle: to each according to his or her effective contribution. A third element in the above-mentioned complex of concepts is related to a particular view of the role of publicly enforced norms, emphasizing their instrumental relation with respect to private exchange. It comes in two different versions. One line of thought is associated with Thomas Hobbes: mediation of private economic activities by private property rights and contracts is basically seen as an instrument for the political goal of preserving peace. It is an expedient instrument regarding that goal because economic exchange is a form of social mediation enhancing the natural potential of humans without invoking a common encompassing set of ethical/religious norms, whose divisiveness was experienced in the religious wars of early modernity. In a different line of thought (owing much to John Locke), the public sector basically is to be understood as an enterprise guided by private economic purposes: the state is an agency for the better enforcement of pre-political ‘natural’ rights, thereby enhancing the private value of those rights.
