The political function of will in contract law

Abstract

Will, as a fundamental element of contract formation in private law, has often been analyzed in an individualistic and reductionist framework. This is while contractual rules have fundamental functions in the formation of public order and the realization of the "rule of law". This article, adopting an interdisciplinary approach, has reinterpreted the concept of will in the light of political jurisprudence (with regard to the anthropological ideas of Mirza Na'ini) and legal theories and regulations. The research findings show that contractual will is not merely the basis of private obligations, but is an institutionalized mechanism for the transition from authoritarian power to responsive power. The fundamental innovation of this research lies in proving the claim that modern legal institutions and the control of power are rooted in the original logic of contract law, such as the rules of keeping promises and non-harm and the principle of the rule of will; accordingly, the establishment and sustainability of the rule of law depends on the protection of "free wills" and the observance of equality at all levels of governance.