Issue 7

Making and Keeping Contracts

Contracts present two basic practical questions: First, what reasons exist for making them; and second, what reasons exist for keeping them. Certainly the question why one must keep one’s contracts (and when one might breach them) belongs to the mainstays of casuistic moral philosophy and legal practice. And it is equally natural, although perhaps a little less familiar, to ask what reasons a society has to promote contractual as opposed to other forms of coordination, such as bureaucratic regulation or the tort system.

Although a sympathetic reconstruction of our contractual practice must answer both questions together, the most familiar existing theories of contract each address only one and neglect the other. The economic theory of contract emphasizes making contracts but contains no independent account of why contracts should be kept; and the harm and will theories of contract emphasize keeping contracts but contain no independent account of why contracts should be made.

These patterns of inattention render existing theories of contract at best incomplete. Moreover, and more dramatically, the reasons for making and for keeping contracts are intertwined, so that the failures of existing theories to address both questions undermines the accounts that these theories propose of the aspect of contractual practice that they do address. This pattern is not surprising; whereas contracts create relations that have value in virtue of binding promisors and promises together, the familiar theories of contract all focus on benefits that contracts provide to the parties to them taken severally.

These pages therefore organize prominent dissatisfactions with existing theories of contract, together with some new objections that they introduce, into a pattern that is more forceful than the sum of its parts. Along the way, they offer support for an alternative theory of contract that I have elsewhere called the collaborative view, which emphasizes the intrinsic value of the contract relation and naturally treats the reasons for making and keeping contracts together, as belonging to a unified moral whole.

Eliminating Corrective Justice

A prominent position in the contemporary debate over the relationship between distributive and corrective justice is that distributive justice is normatively prior to corrective justice. The view eliminates corrective justice as a principle with independent normative force. This Comment in three sections argues that the eliminitivist arguments urged by Kevin Kordana and David Tabachnick against Rawslian conceptions of tort law are unconvincing. Section I argues that nothing intrinsic to Rawlsian methodology bars corrective justice from having independent normative force in tort law. Section II argues that the scope of Rawlsian principles of justice or considerations bearing on the temporal scope of distributive and corrective justice don’t compel the same conclusion. Briefly describing different possible positions on the point of corrective justice, Section III concludes that the relation between distributive and corrective justice can’t be assessed without determining the conceptual elements of corrective justice.

On Belling the Cat: Rawls and Corrective Justice

Recent scholarship has argued that post-institutional theories of distributive justice, specifically Rawlsianism, are compatible with a principled commitment to corrective justice. We argue that however attractive on independent or pre-institutional moral grounds a principled commitment to corrective justice and its corresponding model of tort law may be, it is misleading to think that the Rawlsian post-institutional conception of distributive justice is, at the level of principle, consistent with such an independent commitment. We argue that holding the truth of a maximizing theory of distributive justice in conjunction with a principled commitment to corrective justice is inconsistent. The attempt to hold both positions as true may flow, we suggest, from an unjustified presumption about the compatibility of post-institutional – particularly, maximizing – theories of distributive justice and other non-maximizing moral commitments which one might hold or view as appealing on grounds independent of one’s commitment to distributive justice. In our view, the values enshrined in Rawls’s two principles of justice (taken in lexical order) reflect the deontological features of Rawls’s original position. The principles of justice themselves, however, once adopted, function as consequentialist maximizing principles, taken in lexical priority, in selecting between competing complete schemes of legal and political institutions. While the tension between the corrective justice and the utilitarian or wealth maximization conceptions of tort law has long been discussed and is well understood, the relationship between the corrective justice conception of torts and post-institutional theories of distributive justice (in particular, Rawlsianism) has only recently received sustained attention. Recent articles by Stephen Perry and Arthur Ripstein emphasize the compatibility – or even the necessity – of corrective justice (i.e., as an “independent” component of justice) within the Rawlsian distributive scheme. We argue, contra this emerging view, that distributive justice, in particular Rawlsianism, conflicts at the level of principle with corrective justice, and that it is inconsistent to remain (as a matter of principle) independently committed to both, given the Rawlsian view of property. In short, our central claim is that Rawlsian ideal theory is best understood as adopting the consequentialist (outcome-oriented) theory of tort law.

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