Barbara Fried's recent piece, The Holmesian Bad Man Flubs His Entrance (abstract here), struck a chord with me for several reasons. First, she asks an obvious but frequently ignored question: Why should there be legal remedies at all for breach of contract? If, as those schooled in the liberal tradition of human autonomy generally assert, we should consider contract parties bound by only that to which they have agreed, why should the courts intervene if the parties (as is the standard case) have not agreed that this should be the case? "Whose contract is this, anyway?" asks Fried. (The utilitarians have an answer but Fried--correctly in my opinion--excludes them from the liberal tradition.) Simply asserting that the parties implicitly agreed to a measure of damages for breach of contract (which is consistent with the liberal tradition, see Randy Barnett) won't do the job because the reasonableness of such an implication depends first on the reality that the law does so and it is the justification for that which is the issue.
The second thing I like about Fried's article is her active interrogation of contemporary moral theorist Tom Scanlon as well as the current bevy of legal scholars who have weighed in on the issue (although she does omit Jody Kraus and Nate Oman, the Virginians other than me who have addressed the issue).
Thirdly, Fried forthrightly acknowledges that legal action is rarely sufficient to remedy the failure of a contractual promisor to do what he or she promised to do.. Despite it protestations about the sanctity of contract, the long of it is that the law does precious little to vindicate an aggrieved promisee in most cases.
Of course, there is one thing about Fried's article that reflects a serious omission: her failure to deal with my argument on the "why" of civil contract remedies in Principled Pluralism and Contract Remedies (which you can find at my SSRN author page here). Without elaborating on what I argued there, I believe that a set of four doctrines of the Christian faith (law, mandate, image of God, and sin) provide an answer to the question being asked by Fried and many others. I'm afraid that purely secular justifications, as insightful as they may be, will ultimately fail to deliver the goods. For me at least, only those that look above/below/behind (pick your preposition) the phenomena of "this secular age" will do the trick.
The second thing I like about Fried's article is her active interrogation of contemporary moral theorist Tom Scanlon as well as the current bevy of legal scholars who have weighed in on the issue (although she does omit Jody Kraus and Nate Oman, the Virginians other than me who have addressed the issue).
Thirdly, Fried forthrightly acknowledges that legal action is rarely sufficient to remedy the failure of a contractual promisor to do what he or she promised to do.. Despite it protestations about the sanctity of contract, the long of it is that the law does precious little to vindicate an aggrieved promisee in most cases.
Of course, there is one thing about Fried's article that reflects a serious omission: her failure to deal with my argument on the "why" of civil contract remedies in Principled Pluralism and Contract Remedies (which you can find at my SSRN author page here). Without elaborating on what I argued there, I believe that a set of four doctrines of the Christian faith (law, mandate, image of God, and sin) provide an answer to the question being asked by Fried and many others. I'm afraid that purely secular justifications, as insightful as they may be, will ultimately fail to deliver the goods. For me at least, only those that look above/below/behind (pick your preposition) the phenomena of "this secular age" will do the trick.
No comments:
Post a Comment