"The Dignity of Commerce" and The Private Law Podcast

Nate Oman's book The Dignity of Commerce: Markets and the Moral Foundation of Contract Law (Chicago 2017) came out four years ago.

I got around to reading it only this past summer. It is very 

good. Attempting to span the gap in legal theory between autonomy and efficiency, Oman presents a  modest virtue-based justification for contract law. Even a brief moment of introspection reveals that we participate in the practice of contracting ordered to ends that are greater than exercising personal sovereignty or satisfying the appetites of the moment. Humans inevitably orient themselves to ends. We are more than creators of an evanescent identities or wealth-maximizing animals. But neither are we not not busy about our identities or satisfying our needs.

Autonomy and efficiency are part of the story but hardly the whole. And even to the extent that exercising autonomy and increasing one's welfare are aspects of human nature, standing alone they cannot account for contract law. Law and its ultimately coercive effects require a political justification, at least in States that adhere to some form of political liberalism.

What virtues does contract law inculcate?  Briefly,

Markets require that one consider the point of view of others and alter one’s behavior to satisfy their desires. This disposition supports three important liberal virtues. The first is deliberation, the ability to consider an opposing viewpoint. The other two virtues are negative. Markets weaken loyalty to tribe and family, cultivating the ability to relate to strangers according to impersonal criteria. Finally, markets break down aristocratic habit, encouraging people to relate peaceably as equals.

Markets make us less honorable and more commercial. Not duels but litigation.

To what end do Oman's three limited virtues of the market aim? What vision of human flourishing animates them? Very briefly, political liberalism. The contemporary political order in the West and many other parts of the world is decidedly secular in the sense described by Charles Taylor in A Secular Age. Liberalism works by eschewing the transcendent in political affairs. Even if the goal of human life transcends this present age, it remains the case that we do not agree about what that goal might be nor about its significance for the here and now. A flourishing market, buttressed by contract law, works well to maintain a liberal political order by softening our rough edges and keeping our minds occupied with the many goods the market delivers.

What might nearly as good as Oman's book is listening to Filipe Jimenez interview Oman about The Dignity of Commerce. I always appreciate Jimenez's podcasts but I teach in the field of private law. Still, one need not be a legal theory geek to appreciate this episode.

Of course, I don't agree with all of Oman's arguments and conclusions in The Dignity of Commerce. I have posted an initial draft of a paper, "Person-Centered Pluralism for Contract Theory" here. If you care to download the it you can go to pages 8-10 for my summary comments about Oman's book.

The heart of my critique Oman's account is his failure to ground the virtues of the market in the full human person. A richer account of what it means to be human would provide a firmer foundation for the virtues of contracting and the warrant for contract law than does support of the market and political liberalism. A vision of the flourishing person would also provide more bite when it comes to criticizing aspects of contract law. I try to do both in my piece.

There is no doubt, however, that The Dignity of Commerce is one of the best additions to contract theory in recent years.