Introductory remarks: contract law and morality.

• Author: Oman, Nathan
• Position: CONTRACT LAW

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...