11 July 2018

Contract Limits? Or, Why Everyone Should Read Adeline Allen's Paper: Part 2

Go here for Part 1 of my survey of Adeline Allen's argument against surrogacy contracts.

Taking human flourishing as the "can't help" of the purpose of human existence, Allen works backwards through the goods that contribute to that flourishing (tracing John Finnis those goods include: "life and health, marital-procreative union, friendship, knowledge, play, aesthetic appreciation, skillful performance, religion, and practical reasonableness").* Practical reasonableness is the last of these goods because it is the faculty by which humans figure out how best to pursue a good given the resources, opportunities, and constraints under which they operate at any given time. For even the most morally upright among us, there are many uncontested goods that we cannot seek at the same time. And for the rest of us--less than morally upright as we may be--practical reasonableness is equally crucial as we identify the good in a contest among possible states of affairs.

Moving from the individual to the state, practical reason also serves as the means by which law-makers choose the sorts of laws that will best enable citizens to flourish. Law is not so much designed to create flourishing citizens but as to provide the public framework in which they can work it out for themselves. In other words, the form of a lawmaker's practical reason is not the same as an individual's; it is one step removed.

Contract law is an example. Human finitude and productivity ground the social practice of contracting. (Download my short piece The Law of Contracts: A Place to Start here or here.) None of has everything we need and most of us can produce (or do) more of something than we can use (or enjoy). Ever-expanding circles of human exchange exist so we can share of our abundance with those in want and vice versa. Contract law thus comes to express one aspect of practical reason and another of justice. Contract formation rules express the practical reason of law-makers who provide a simplified means by which parties may enter into contracts. Contracts can be formed along many routes but it makes the life of exchange simpler if there are a few well-marked trails we can use without giving much thought to the details of forming a contract.

Justice provides law-makers with a second pole around which to array features of contract law. In its simplest mode, corrective justice provides law-makers with the baseline remedy by which to rectify breaches of contract. (I wrote about this at some length in Principled Pluralism and Contract Remedies (download here or here). Not surprisingly, practical reasonableness and justice come to bear in contract law at many other places along the way from contract formation to breach and repair. Yet neither the exercise of law-maker's practical reason in simplifying the rules of contract formation nor application of corrective justice to remedies for contract breaches addresses the scope of what parties may exchange by way of contract. It is at this point that Allen's paper adds to the discussion.

In Part 1, I concluded that Allen had demonstrated that the ills associated with surrogacy exceed the good it fosters. In other words, working from the self-evident goods of human nature, practical reason concludes that persons should not contract for another to bear and then surrender a child. This is a conclusion of ethics. (It may be useful to recall that I did not reproduce Allen's arguments; I only alluded to them. To be persuaded, as I believe you will, you must read her paper! (download here)) But what should be the conclusion of law? Should contract law prescind from providing a remedy for breach of a surrogacy contract?

Allen's paper navigates the gap from the illicit nature of surrogacy contracts to their illegality. Why, given the importance of freedom to human flourishing, should law-makers limit this particular freedom? 
Because humans, being rational (or having the capacity for reason) but imperfectly so, do not always enter into contracts consistent with the requirements of reason In other words, they enter into contracts with non-rational motivations (“factors that . . . fetter reason”) or with practical un-reasonableness, which is inhospitable to the common good and thus inconsistent with human flourishing.
True enough but does this argument prove too much? Given our imperfect reason, should law-makers police freedom of contractual choice much more aggressively than they do at present? In other words, what places the "surrogacy choice" outside the pale of the freedom to make less-than-good contract decisions? Given Allen's concession that the practical reason of law-makers is one step removed from the practical reasonableness of contract parties, simply because a choice is immoral is insufficient to establish that the law should prohibit it.

Here's where Kantian moralists of duty and Christians of a biblicist bent can get stuck. Sooner or later abstract duty or the Bible runs out. At some point neither provides an unambiguous answer to the question of whether a particular decision in the vast moral grey area of life is right or wrong.  Yet any serious natural law framework of ethics or jurisprudence recognizes that framing the typical legal rule is not between requiring a simple good and prohibiting a pure evil but instead are a
determinatio. [They] are not deductive and are thus more permissive than rationally compelling. They are still derived from natural law or the requirements of practical reason, but they require context-dependent judgment. These laws still justify boundaries. While these laws have a qualified nature, they are still appropriate and needed because of their “rational connection with some principle or precept of morality,” when considered in their context. In this way, these “[c]ontext-dependent norms guide deliberation toward more reasonable choices and actions and away from less reasonable choices.”
More than a mere "nudge" (here and here), a legal determinatio frames or guides the practical reason of a citizen in a more straightforward way. And, given the solid foundation for concluding that surrogacy contracts do more harm than good, Allen concludes that as a matter of justice they represent a contractual choice folks should not be free to make. (Or at least not free to seek legal recourse if breached.)

I'll leave it to folks to read Allen's paper for the details of her argument that prohibiting surrogacy contracts is an appropriate determinatio by law-makers. I could point out, however, that her legal conclusion about surrogacy contracts finds support in the common law tradition that has long singled out contracts that would impair family relations as violating public policy. See, e.g., Restatement (Second) Contracts §§ 189-191.

In summary, Allen's paper is an example of sort of humane and careful jurisprudence that I like to see. Taking first principles of human nature and law seriously, studying the results of empirical and scientific scholarship, and guided by an evident care for real human beings (surrogates and their children), I hope many will take the time to consider her paper with the care it deserves.

* Unlike some in the new natural law tradition, Allen does not shy away from grounding these self-evid
ent (i.e., undeniable by any rational person) human goods in the Christian account of creation in the image of God:
[Practical reasonableness] is uniquely human in that “the natural human capacities for reason and freedom are fundamental to the dignity of human beings.” This capacity for reason and freedom is “God-like (literally awesome).” The Book of Genesis puts it as man bearing the very image of God.

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