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Introductory Remarks: Contract Law and Morality
| Content Provider | Semantic Scholar |
|---|---|
| Author | Oman, Nathan B. |
| Copyright Year | 2007 |
| Abstract | If one listens to the voices that can be heard in many corners of the legal academy, now is not an auspicious time to construct moral theories of contract law. (1) Some articulate writers have suggested that virtually all of our disputes are actually empirical rather than moral. John O. McGinnis has written provocatively in this vein that politically, most people within modern industrial society adhere to a rather narrow range of values, at least in the economic realm. They favor more prosperity, better education and health care, and other such goods that make for a flourishing life. As to these issues, what is debated is which political program will in fact broadly deliver these goods. (2) According to McGinnis, we stand at the threshold of a new age of empiricism in which technology is dramatically reducing the costs of collecting, analyzing, and disseminating data. Informed opinion will gradually converge on empirically driven conclusions, and the real danger will be "the narcissism of small differences, in which individuals overlook the agreements they have to focus even more virulently on the disagreements that remain." (3) In a world dominated by empiricism, the moral theory of contract seems like an anachronism, a throwback to a premodern world of ethical abstractions that ought to give way before the juggernaut of common sense and social science. In the face of increasingly attractive alternatives, would-be moral theorists of contract (4) must offer a defense of the continuing relevance of their conversation. One can, of course, offer cheap metadismissals of empiricism. We have been on the doorstep of the triumph of social science before, only to see grandiose hopes give way to more modest conclusions. (5) Such a response, however, does not really provide an apology for moral theorizing about contract law. William James suggests that theories are "instruments, not answers to enigmas, in which we can rest. We don't lie back upon them, we move forward, and, on occasion, make nature over again by their aid." (6) Seen in this light, moral theories of contract are tools that help us to deal with two basic kinds of puzzles: interpretive and normative. The interpretive puzzle was set up nearly a half century ago when H.L.A. Hart largely discredited the idea that law can be wholly reduced to a series of threats and incentives. (7) This does not mean, of course, that law cannot be fruitfully studied as a system of incentives. (8) It does mean, however, that the study of law is not exhausted by such an approach. There is also what Hart called the "internal" point of view. (9) Rather than showing us the law simply as an institutional or behavioral system, the goal of elucidating the law from this internal point of view is to understand the law from the standpoint of practitioners who ask not only, "How may we carry on this practice in a way that is faithful to its inherent norms?,["] but rather, "How may we carry on this practice in a way that is faithful to norms that are both inherent in it and reflectively acceptable to us?" (10) Moral theories of contract seek to provide such an internal perspective and in so doing extend our understanding of law beyond what can be offered by empiricism alone. The second problem, for which moral theory is a tool, is normative. Before we can deploy the tools of social science to illuminate policy debates, we must have some sense of what those debates are about. McGinnis argues that there is widespread moral agreement on most economic issues, which would presumably include private law subjects such as contract. (11) There are, however, two reasons to suppose that moral theories of contract are far from irrelevant. First, there are some situations in which a person might be genuinely puzzled not simply about empirical imponderables, but also about questions of value. Indeed, when we pitch moral principles at the level of abstraction where they are likely to command universal assent--for example, "generally speaking, we should keep our promises"--they tend to become vacuous. … |
| Starting Page | 1643 |
| Ending Page | 1643 |
| Page Count | 1 |
| File Format | PDF HTM / HTML |
| Volume Number | 48 |
| Alternate Webpage(s) | http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1189&context=wmlr |
| Language | English |
| Access Restriction | Open |
| Content Type | Text |
| Resource Type | Article |
