Choice in context : a relational perspective on coercion in the Law of Contract and the Law of Marriage

Abstract

The rhetoric of freedom is sometimes too readily accepted. It has infected, in particular, the discourses and doctrines of law, especially in the field of so-called ‘private ordering’. Thus it is regularly considered self-evident in this context that the parties to a contract (whatever form that that contract takes), be free of external coercion or compulsion. The reality is that many factors - physical, social and interpersonal - usually beyond the control of one individual, shape, structure and sometimes even compel individuals to action (or inaction as the case may be). The dominant conceit of contractualism - that the individual be left to order his own destiny - may thus be largely an unrealisable ideal or one that can be achieved in part only. In fact the law generally deals only with a subset of the total incidence of coercion and compulsion. The several doctrines that purport to treat of coercive incidents are generally qualified heavily by requirements of impropriety or illegitimacy that in practice contain and limit legal relief where there is coercion or compulsion. The suggestion that such doctrines be based on the fact of impaired consent alone, however, has proved especially persuasive in the field of contract and seems to have been accepted as the dominant criterion in relation to the validity of marriage in Ireland.