Private law has a peculiar status in recent political philosophy. It is often said that the law of property and contract establishes basic, pre-political rights that must constrain the activities of states. No less often, it is said that private law just is one of the activities of states, to be assessed in the same way as any other exercise of state power. This second approach has its roots in the utilitarian thought of Bentham and Mill, but in recent decades it has become home to the primary non-utilitarian account of private rights. Many of John Rawls’ most ardent admirers in the academy have sought to put his social contract theory foreword as an alternative to utilitarianism, while accepting the basic utilitarian perspective on private law as public law in disguise. My aim in this paper is to provide an alternative to these two prominent views. The alternative I will develop draws on Kant and Rawls. I will articulate Kant’s account of the nature and significance of private ordering in relation to freedom. The main part of my argument is concerned with the converse task of showing why private ordering requires public justice. I argue that the rule of law is a prerequisite to enforceable rights being consistent with individual freedom. Unless it issues from a public standpoint that all can share, the use of force subjects one person to the arbitrary choice of another. Turning once more to Rawls, I will argue that the best way of thinking about his emphasis on public provision of adequate rights and opportunities in parallel terms: they are the moral prerequisites for a shared public sphere, which is the precondition of legitimate enforcement of private rights.
Volume 92
Is As Ought: The Case of Contracts
A Response to Making and Keeping Contracts by Daniel Markovits.
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.