Understanding Unconscionability: An Essay on Kant's Legal Theory

ROBERT WISNER

ABSTRACT

This article presents the case for an understanding of unconscionability grounded in Immanuel Kant's vision of law. The author argues that the leading theories of unconscionability are incoherent and that an alternative approach is needed. Such an alternative is provided by Kant who, in sharp contrast to most contemporary scholars, does not view law as serving certain functions. Instead, he interprets legal categories as expressions of the capacity of human agents to exercise free will. This view of rights rules out any of the distributive concerns that apparently underlie the desire to redress "inequality of bargaining power." The author argues, however, that two aspects of Kant's approach suggest another understanding of the doctrine. First, Kant's theory of contract provides a rationale for a broad defence of economic duress based on the coerciveness of a threat to violate a legal right. Second, the theory explains how the unity of wills and continuity of acts that result in contract formation also require some form of equivalence in exchange. Although the precise measure of equivalence is somewhat indeterminate, the theory does suggest why it should be based on departures from the prices of goods in competitive markets.

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Citation: (1993) 51(2) U.T. Fac. L. Rev. 396.
Copyright © 1993. University of Toronto Faculty of Law Review.
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