Peter Jones

This paper focuses on the role of contract as a governance mechanism in contemporary economic and social relations, exploring this theme in the context of recent writing on contract and contracting within law and other disciplines. The trends towards both outsourcing by private firms and privatization of public services have increased the importance of contract as an instrument of market and quasi-market exchange. Such organizational developments have been accompanied by institutional changes in the way in which business relationships are regulated through legal and extralegal norms and other constraints in the contractual environment. Contract is also being deployed increasingly as an instrument of regulation of social relations between the state and citizens in the fields of welfare, education and criminal justice. Following Macneil, the paper develops a methodology for assessing the quality of different types of relationship—between buyers and sellers, purchasers and providers, providers and consumers, regulators and regulatees, government and governed, and state agencies and citizens—according to the relationality of «contract» norms. Drawing on theories of responsive regulation, the paper explores the institutional and organizational conditions of responsive contractual governance in selected areas of market, quasi-market, and social relations. The underlying argument is that the core values of democracy, participation, and citizenship have a central part to play in the determination of responsive regulatory policy. We should aim to increase the level of public participation in decisions concerning organizational and institutional frameworks, so that citizen and consumer interests may adequately be represented in the determination of optimal forms of governance

Sir David Ross introduced and discussed his notion of prima facie duties in chapter 2 of The Right and the Good , and it is to this chapter that I shall devote most attention. I wish to show that the distinction between prima facie and “actual” duties, as expounded by Ross, entails that there are no “actual” duties; and I wish to show that this unfortunate consequence of the distinction arises from Ross's explicit epist-emological views. Writers such as Ewing, Baier and Frankena, who have quoted Ross's distinction with some degree of approval, force one to ask how, precisely, they interpreted it. In the first part of this paper I set out Ross's exposition in detail, since failure to do this has blinded adherents to its difficulties; in the second part I summarise my findings and indicate the problems Ross rightly poses for us; in the third part I suggest possible sources for Ross's views. Two points should be noted at the outset. Firstly, the distinction applies to acts, not actions; “act” refers to “the thing done, the initiation of change, and ‘action’ the doing of it, the initiating of change, from a certain motive” . Secondly, the term “right” is used throughout as synonymous with “what is my duty”