Document Type

Article

Publication Date

2007

Center/Program

Center for Law and Philosophy

Abstract

Since this is a conference on law and morality, and the topic of this panel is theories of contract law, I thought it particularly appropriate to ask how a theory of contract law can provide a moral justification for contract law. That question can be answered only by providing a more general account of how a legal theory can provide a moral justification for any area of the private law. In this preliminary Essay, I argue that in order morally to justify the private law, a theory of the private law must derive reasons from a normative political theory that determine the outcomes of adjudication in cases within the private law.' I reject the claim that legal theories can provide a moral justification merely by demonstrating a correspondence or coherence between a normative political theory and the doctrinal statements found in cases, treatises, restatements, and the like, leaving the question of whether and how those doctrines determine outcomes unanswered. In short, my claim is that moral justification requires legal determinacy.2 At the outset, let me be clear that I am not talking about causal determinacy. Rather, the claim is one about justification: an area of law cannot be justified unless it provides reasons that epistemically warrant the conclusion that its adjudicatory outcomes are uniquely justified. After developing the argument for this view, I conclude by considering three of its implications of this view. The first is that theories that purport to provide a moral justificant of any area of law must proceed by first explaining how the law in that area determines adjudicative outcomes. Explanatory theories of the private law are therefore methodologically prior to the moral justification of the private law. The second is that John Rawls's theory of public justification in Political Liberalism' requires normative theories of the private law to identify the content of the private law with the express judicial reasoning in decisions governed by the private law. Therefore, if that reasoning cannot be interpreted as providing reasons that determine the outcomes of private law adjudication, then the private law is not morally justified. A third implication is that whether the private law can be justified ultimately will depend on what jurisprudential theory of law turns out to be correct. Those that share Rawls's commitment to treating express judicial reasoning as constitutive of the law, for the same or different reasons, will have to interpret that language to make it outcomedeterminative in order to justify the private law. Jurisprudential views that treat express judicial reasoning as mere theories of the law that are not constitutive of law will have a better prospect of demonstrating the determinacy of the reasoning in the private law.

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