Contract Law and Morality

Contract Law and Morality

Contract Law and Morality

Contract Law and Morality


Combining natural law theory, reliance theory, and economic analysis to develop a jurisprudential approach, this is a prescriptive work presenting a vision of what contract law would be like if it were devoted to teaching moral virtue. The jurisprudential approach draws upon insights of Aristotle, Saint Thomas Aquinas, and other thinkers in the natural law tradition. The author applies this approach to selected legal issues to produce the only contemporary book that uses a natural law approach in prescribing specific reforms in American contract law.


This is an unfashionable book. It proposes a moral approach to contract law but eschews the various theoretical devices now favored by moral philosophers and legal scholars. My approach is not theoretically elegant. Nor does it attempt to reduce everything to one simple principle. I have tried, instead, to make recommendations based on common sense and certain notions of decency and fair play. Some readers will therefore find my arguments both messy and boring.

This book is also unfashionable in another way. It will not be readily identified with any political program. It is not conservative, liberal, or radical (though some may regard it as reactionary).

The first part of the book is theoretical. Chapter 1 is an introductory analysis of the social practice of promising. It identifies two essential purposes in contracting: the facilitation of beneficial reliance, and the promotion of mutual benefit. These purposes are to be realized within the bounds of justice, so the question arises: What does justice require in contracting?

In Chapter 2, I evaluate and reject three theories of contract justice, each of which has considerable support in the legal profession: freedom of contract, wealth maximization, and egalitarian distributive justice. Though I join in the demand for greater economic equality, our contract law must be designed to work in a capitalist market economy and thus cannot do much to promote equality.

In Chapter 3, the heart of the book, I propose a natural law approach in which contract law pursues Aristotelian rectificatory justice (but also goes beyond rectificatory justice). After discussing the complex nature of morality, I present seven Principles of Common Decency and eleven Principles of Responsive Adjudication to serve as guidelines in the pursuit of justice. The Principles of Common Decency . . .

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