Introduction

What is the proper way to justify the doctrine of unconscionability? Should we understand the doctrine as a device by which the state bails people out of poor and uninformed choices they make in their agreements with each other? As a device against some forms of exploitation and in support of individual autonomy? As a redistributive device? As a means for improving efficiency? These perspectives may occasionally overlap in practice, but they are sufficiently distinct in principle. The choice among them will determine not just how the argument in favour of the doctrine ought to be made, but also the range of objections that this argument will need to meet. The aim of this chapter is to explain why making that choice has been a difficult task for contract theory and to offer an alternative justification of the doctrine of unconscionability, which I believe merits independent consideration.

Some threshold difficulties

Compared to the notions of ‘duress’, ‘undue influence’ or ‘misrepresentation’, the notion of ‘unconscionability’ is harder to unpack. Whereas the former notions give us some immediate glimpse of what is wrong with enforcing an undertaking, e.g. that one party to that undertaking has been put under some sort of illegitimate pressure or has been misled into agreeing, the notion of unconscionability tells us considerably less. On the face of it, all it signifies is that it would be ‘against conscience’ to insist on enforcing a certain undertaking or, from the point of view of our institutions, to actually enforce it.