The artificial morality of private law: The persistence of an illusion
Publication: University of Toronto Law Journal
Volume 70, Number 4
Abstract
In the public at large, property and contract law are commonly thought to reflect moral proprietary and promissory rights. Contemporary philosophers are mostly sceptical about natural property rights, though not about promissory rights. I argue at length that contract and promise, no less than property, can only be justified instrumentally – by appeal to the social good that these conventional practices produce. The aims of these practices need not be limited to social welfare but can include social justice and values more closely connected to the subject matter of the practices. The illusion that the law of the market reflects individual natural rights is harmful to public political discourse about institutional design. For example, it leads to ungrounded ideas about a right to freedom of contract and severely distorts the discussion of tax policy. The tenaciousness of this illusion deserves investigation. Promise and property are backed up and enforced by contract and property law. These legal orders necessarily take the form of a set of rules that specify legal rights and obligations. Living our lives in a social world structured in significant part by the law of the market, it is very hard to see those legal rights and obligations as not reflecting a deontological order of moral rights and obligations. We have here a case where misunderstanding the formation of legal normative orders leads us astray in our understanding of moral normative orders. This in turn hinders us in our ability to see clearly what the options for morally sound reform of the legal normative orders may be.
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References
1.
See the discussion of everyday libertarianism below.
2.
See Liam Murphy, ‘The Practice of Promise and Contract’ in Gregory Klass, George Letsas & Prince Saprai, eds, Philosophical Foundations of Contract Law (Oxford: Oxford University Press, 2014) 151 at 151–2 [Murphy, ‘Practice’; Klass, Letsas & Saprai, Philosophical Foundations].
3.
See Stephen A Smith, Contract Theory (Oxford: Oxford University Press, 2004) at 3–37.
4.
Ernest J Weinrib, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995) at 49. See also Robert Stevens, Torts and Rights (Oxford: Oxford University Press, 2007).
5.
See Liam Murphy, ‘The Formality of Contractual Obligation’ in Andrew Robertson & James Goudkamp, eds, Form and Substance in the Law of Obligations (Oxford: Hart Publishing, 2019) 149; Liam Murphy, ‘Purely Formal Wrongs’ in Paul Miller & John Oberdiek, eds, Civil Wrongs and Justice in Private Law (New York: Oxford University Press, forthcoming in 2020).
6.
I take the pure form of libertarianism to be that laid out by Robert Nozick, Anarchy State and Utopia (New York: Basic Books 1974) [Nozick, Anarchy]. This view is often referred to as neo-Lockean, but John Locke did not hold such an extreme view. See Jeremy Waldron, ‘Locke, Tully, and the Regulation of Property’ (1984) 32 Political Studies 98; A John Simmons, The Lockean Theory of Rights (Princeton, NJ: Princeton University Press, 1992), ch 6. Simmons remarks that ‘libertarians are moved, I’m afraid, more by their search for philosophical forbears of suitable respectability than by close attention to Locke’s texts’ (60–1). A less pure form of libertarianism, allowing for regulation and compulsory taxation to the extent that it benefits everyone, is defended by Richard Epstein, Takings (Cambridge, MA: Harvard University Press, 1985).
7.
‘Such was, or must have been, the origin of Society and of Laws, which gave the weak new fetters and the rich new forces, irreversibly destroyed natural freedom, forever fixed the Law of property and inequality, transformed a skillful usurpation into an irrevocable right, and for the profit of a few ambitious men henceforth subjugated the whole of Mankind to labor, servitude and misery.’ Jean Jacques Rousseau, ‘Discourse on the Origin and Foundations of Inequality Among Mankind’ in Victor Gourevitch, ed, The Discourses and Other Early Political Writings (Cambridge, UK: Cambridge University Press, 1997) 115 at 173.
8.
‘The selfish misconception that induces you to transform into eternal law of nature and reason, the social forms springing from your present mode of production and form of property – historical relations that rise and disappear in the progress of production – this misconception you share with every ruling class that has preceded you. What you see clearly in the case of ancient property, what you admit in the case of feudal property, you are of course forbidden to admit in the case of your own bourgeois form of property.’ Karl Marx & Friedrich Engels, The Manifesto of the Communist Party (1848), reprinted in Marx and Engels Collected Works, vol 6 (London: Lawrence & Wishart, 1976) at 501, online: Project MUSE, <muse.jhu.edu/book/32876)> [Marx and Engels Collected Works].
9.
David Hume, A Treatise of Human Nature (1739–40), edited by LA Selby-Bigge, revised by PH Nidditch, 2d ed (Oxford: Oxford University Press, 1978), bk III, part II [Hume, Treatise of Human Nature].
10.
Nozick, Anarchy, supra note 6.
11.
John Rawls, A Theory of Justice (1971), rev ed (Cambridge, MA: Harvard University Press, 1999) [Rawls, Theory of Justice]. Note that Rawls himself proposed evaluating institutions such as property and contract solely on the basis of social justice as identified by his two principles, which do not obviously have room for values distinctively associated with private ordering. For discussion, see Samuel Scheffler, ‘Distributive Justice, the Basic Structure, and the Place of Private Law’ (2015) 35 Oxford J Leg Stud 213. This limitation of Rawls’s theory, if that is what it is, need not, of course, be shared by all instrumentalist views, no more than need Hume’s exclusive focus on the values of individual self-interest and social utility – about which more below.
12.
In 1984, Michael H Robins wrote of the ‘near universal deprecation, inspired by Hume, of the idea that real, binding obligations can somehow be ‘willed’ into existence, as one can will into existence the movement of one’s arm.’ Michael H Robins, Promising, Intending, and Moral Autonomy (Cambridge, UK: Cambridge University Press, 1984) at 1 [Robins, Promising]. What is now near universal is the rejection of the Humean view.
13.
See the works cited in notes 41–3 below.
14.
Hume, Treatise of Human Nature, supra note 9, bk III, part II, s II, para 1.
15.
Both Hume (ibid, bk III, part II), in his discussion of the artificial virtues, and Rawls (John Rawls, ‘Two Concepts of Rules’ (1955) 64 Philosophical Rev 3 [Rawls, ‘Two Concepts’]), appear to believe that, once the desirability of the practice is established, the bindingness of the rules within the practice is assured. But this does not follow, as we will see below.
16.
Rawls, Theory of Justice, supra note 11 at 303–6.
17.
For criticism of the ‘voluntariness’ part of the argument, see Robins, Promising, supra note 12 at 127–32. I make a different criticism below.
18.
See Margaret Gilbert, ‘Scanlon on Promissory Obligation: The Problem of Promisees’ Rights’ (2004) 101 Journal of Philosophy 83; Stephen Darwall, ‘Demystifying Promises’ in Hanoch Sheinman, ed, Promises and Agreements (Oxford: Oxford University Press, 2011) 255 [Darwall, ‘Demystifying Promises’; Sheinman, Promises and Agreements]. Promising is the main case that R Jay Wallace uses to introduce his ‘relational’ account of morality in terms of directed duties. R Jay Wallace, The Moral Nexus (Princeton, NJ: Princeton University Press, 2019) at 47–54ff.
19.
Scanlon’s ‘Principle L’ goes further than that, attaching responsibility whenever reliance is intentionally or negligently caused. TM Scanlon, What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1998) at 300–1 [Scanlon, What We Owe]. Principle L seems to me too expansive in its attribution of responsibility for the case of individuals. It seems more plausible where the actor is a government; here, we join the difficult and important issue of legitimate expectations, which I cannot go into here.
20.
See Joseph Raz, ‘Is There a Reason to Keep a Promise?’ in Klass, Letsas, & Saprai Philosophical Foundations, supra note 2 at 58 [Raz, ‘Is There a Reason’].
21.
Such as the ideal of respectful community between moral agents, as argued by Daniel Markovits with regard to promise and contract (see Daniel Markovits, ‘Contract and Collaboration’ (2004) 113 Yale LJ 1417) or the idea that promises serve our authority interests – our interests in controlling what others are obliged to do (see David Owens, Shaping the Normative Landscape (Oxford: Oxford University Press, 2012) [Owens, Shaping the Normative Landscape]) or the idea that private property is grounded in an ideal of self-authorship and is an empowering device crucial for personal autonomy and relational equality (see Hanoch Dagan & Avihay Dorfman, ‘The Human Right to Private Property’ (2017) 18 Theor Inq L 391.
22.
See Immanuel Kant, The Metaphysics of Morals, edited by Mary Gregor (Cambridge, UK: Cambridge University Press, 1996) [Kant, Metaphysics of Morals]. For helpful reconstructions of the argument, see Mary Gregor, ‘Kant’s Theory of Property’ (1988) 41 Review of Metaphysics 757; Ernest J Weinrib, ‘Poverty and Property in Kant’s System of Rights’ (2003) 78 Notre Dame L Rev 795. Arthur Ripstein, Force and Freedom (Cambridge, MA: Harvard University Press, 2009) has helped spark a considerable neo-Kantian property literature.
23.
See GWF Hegel, Elements of the Philosophy of Right, edited by Allen W Wood (Cambridge, UK: Cambridge University Press, 1991) [Hegel, Philosophy of Right]. For very helpful unpacking of Hegel on property, see Allen W Wood, Hegel’s Ethical Thought (Cambridge, UK: Cambridge University Press, 1990); JW Harris, Property and Justice (Oxford: Oxford University Press, 1996), ch 13 [Harris, Property and Justice].
24.
Kant’s argument that it must be possible to use things rightfully – that is, compatibly with the freedom of everyone else in accordance with a universal law because otherwise we could not use anything rather notoriously assumes that a regime of private property is the only eligible way to make this happen. Kant, Metaphysics of Morals, supra note 22 at 41 (6:246). For careful and fair-minded discussion of what justice might require of a system of property because of the impact on freedom, see Harris, Property and Justice, supra note 23, ch 14.
25.
Louis-Philippe Hodgson, ‘Kant on Property Rights and the State’ (2010) 15 Kantian Review 57 at 62–3.
26.
Hume, Treatise of Human Nature, supra note 9, bk III, part II, s III, para 1.
27.
Kant, Metaphysics of Morals, supra note 22 at 51 (6:263).
28.
John Locke, Second Treatise of Government 1690) in Two Treatises of Government, edited by Peter Laslett (Cambridge: Cambridge University Press, 1988), ch 5. Kant and Hegel both appeal to first acquisition to make sense of the very idea of property – you cannot acquire what already belongs to someone else, so if things are owned, there must have been a first acquisition. Hegel, Philosophy of Right, supra note 23 at 81, para 50; Kant, Metaphysics of Morals, supra note 22 at 51, 6: 263. But property in civil society is not determined by tracing chains of possession back to an original possession. Hegel, Philosophy of Right, supra note 23 at 249, para 217; Kant, Metaphysics of Morals, supra note 22 at 74 (6:293).
29.
For critical discussion, see Jeremy Waldron, The Right to Private Property (Oxford: Oxford University Press, 1988) at 171–7, 184–207.
30.
For instance, Nozick asks: ‘What are the boundaries of what labor is mixed with? If a private astronaut clears a place on Mars, has he mixed his labor with (so that he comes to own) the whole planet, the whole uninhabited universe, or just a particular plot? . . . If I own a can of tomato juice and spill it in the sea so that its molecules (made radioactive, so I can check this) mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?’ More deeply, Nozick asks: ‘Why does mixing one’s labor with something make one the owner of it? Perhaps because one owns one’s labor, and so one comes to own a previously unowned thing that becomes permeated with what one owns. . . . But why isn’t mixing what I own with what I don’t own a way of losing what I own rather than a way of gaining what I don’t?’ Nozick, Anarchy, supra note 6 at 174–5.
31.
See GA Cohen, Self-Ownership, Freedom, and Equality (Cambridge, UK: Cambridge University Press, 1995), ch 6.
32.
See James Tully, ‘Rediscovering America: The Two Treatises and Aboriginal Rights’ in An Approach to Political Philosophy: Locke in Context (Cambridge, UK: Cambridge University Press, 1993) 137; Barbara Arneil, John Locke and America (Oxford: Oxford University Press, 1996).
33.
Sibylle Fischer, ‘Atlantic Ontologies: On Violence and Being Human’ (2015) 12:1 Emisférica, online: <https://hemisphericinstitute.org/en/emisferica-121-caribbean-rasanblaj/12-1-essays/ e-121-essay-fischer-atlantic-ontologies.html>. On the distinctiveness of Locke’s account of self-ownership, see Brian Tierney, ‘Dominion of Self and Natural Rights before Locke and After’ in V Mäkinen & P Korkman, eds, Transformations in Medieval and Early-Modern Rights Discourse (Dordrecht: Springer, 2006) 173.
34.
This use of ‘incident’ is due to AM Honoré, ‘Ownership’ in AG Guest, ed, Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1961) 107.
35.
It is a pleasure to read Harris, Property and Justice, supra note 23 at 184–97, on ‘body ownership rhetoric’ and the ‘spectacular non sequitur’ of inferring from the fact that I am not a slave (no one owns me) that I own myself. As he rightly says, ‘[n]obody at all owns me, not even me’ (at 196).
36.
See Loren Lomansky, ‘Libertarianism at Twin Harvard’ in Ellen Frankel Paul, Fred D Miller & Jeffrey Paul, eds, Natural Rights Liberalism from Locke to Nozick (Cambridge, UK: Cambridge University Press, 2005) 197 [Lomansky, ‘Libertarianism’; Paul, Miller & Paul, Natural Rights Liberalism]; Jeremy Waldron, ‘“To Bestow Stability upon Possession”: Hume’s Alternative to Locke’ in James Penner & Henry Smith, eds, Philosophical Foundations of Property Law (Oxford: Oxford University Press, 2013) 1 [Penner & Smith, Philosophical Foundations].
37.
See James Penner & Henry Smith, ‘Introduction’ in Penner & Smith, Philosophical Foundations, supra note 36, iii, at xix–xx.
38.
For the now familiar idea that a naturalistic theory needs these three elements, see Nozick, Anarchy, supra note 6 at 150–3.
39.
Nozick acknowledges the difficulty. Ibid at 173.
40.
The historical Locke, sympathetically interpreted, understood this because he held that once government was up and running the laws defined what people owned. (Though perhaps that is not so sympathetic an interpretation since it suggests that he needed the account of property in the state of nature only for the sake of his defence of colonial acquisition and slavery.) Robert Nozick also understood it full well; in his view, historical principles of entitlement to holdings have been violated so grossly and for so long that we have no hope now of rectifying the breaches. So, in the end, the entire theory is admitted by Nozick to be useless as a moral guide to what the content of actual property law, now, should be. Nozick, Anarchy, supra note 6 at 231.
41.
See Thomas W Merrill & Henry E Smith, ‘The Morality of Property’ (2007) 48 Wm & Mary L Rev 1849.
42.
Arthur Ripstein, ‘Possession and Use’ in Penner & Smith, Philosophical Foundations, supra note 36, 156.
43.
See e.g. Edward Feser, ‘There Is No Such Thing as an Unjust Initial Acquisition’ in Paul, Miller & Paul, Natural Rights Liberalism, supra note 36, 56; Eric Mack, ‘The Natural Right of Property’ (2010) 27 Social Philosophy and Policy 53; Lomansky, ‘Libertarianism,’ supra note 36.
44.
Hume, Treatise of Human Nature, supra note 9, bk III, part II, s V. See also Joseph Raz, ‘Promises and Obligations’ in PMS Hacker & Joseph Raz, eds, Law, Morality, and Society, (Oxford: Oxford University Press, 1977) 210 [Raz, ‘Promises and Obligations’].
45.
Lon Fuller & William Purdue, ‘The Reliance Interest in Contract Damages’ (1936) 46 Yale LJ 52.
46.
See Daniel Friedmann, ‘The Performance Interest In Contract Damages’ (1995) 111 Law Q Rev 628.
47.
Neil MacCormick, ‘Voluntary Obligations and Normative Powers I’ (1972) 46 Proceedings of the Aristotelian Society 59; Patrick Atiyah, Promises, Morals, and Law (Oxford: Oxford University Press, 1982); Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990), ch 12; Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Belknap Press, 2011) at 303–11; Heidi M Hurd, ‘Promises, Schmomises’ (2017) 36 Law & Phil 279.
48.
Scanlon, What We Owe, supra note 19 at 302–9. There is a problem about how exactly promises assure, when they do. It cannot be because the promisee knows that the promisor has a moral obligation to perform because that obligation, on this account, is grounded in the fact of assurance. This is the much-discussed circularity problem faced by many attempts to ground the morality of promise in the expectations of promisees, definitively discussed by Prichard in the early 1940s. See HA Prichard, ‘The Obligation to Keep a Promise’ in Moral Obligation (Oxford: Clarendon Press, 1949) 169. Scanlon suggests a way to avoid this problem (ibid at 307–9); for criticism, see Michael Pratt, ‘Scanlon on Promising’ (2001) 14 Can JL & Jur 143; Niko Kolodny & R Jay Wallace, ‘Promises and Practices Revisited’ (2003) 31 Philosophy & Public Affairs 119. It seems to me that Scanlon’s reply to the circularity objection is successful. Making a promise on his view is to say that I am attempting to persuade you that I have a firm intention to act in a certain way, made in the knowledge that if I am successful – if you are assured that I will perform – then it will be wrong of me not to because of the fact of that assurance. The promisor is not trying to assure the promisee through recognition of the moral reason to perform as promised. The promisor is trying to convince the promisee of his firm intention to perform, in the knowledge, however, that there will be a moral reason to perform if he succeeds. The proposal is analogous to the proposal that promises are invitations to rely, which, if successful, generate a duty. The difficulty I discuss in the text is not the circularity issue; rather, I question the core idea that once I have assured someone that I will do X, I am obliged to do it.
49.
Scanlon, in his discussion of ‘the profligate pal,’ accepts that a promise is not binding if there is no expectation of performance. Scanlon, What We Owe, supra note 19 at 312–14.
50.
It is a condition of Scanlon’s ‘Principle F’ that the recipient of the assurance wants it at the time it is given. Ibid at 304.
51.
Ibid at 303.
52.
Scanlon notes that one can always avoid the duty to perform by taking care, after assuring someone by citing existing reasons one has to perform, to say ‘but I don’t promise.’ Ibid at 304.
53.
‘Promises are puzzling because they seem to have the power, by verbal magic, to initiate real voluntary short-term trusting.’ Annette Baier, ‘Trust and Antitrust’ in Moral Prejudices (Cambridge, MA: Harvard University Press, 1995) 99 at 111.
54.
On assuaging vulnerabilities, see Seana Shiffrin, ‘Promising, Intimate Relationships, and Conventionalism’ (2008) 117 Philosophical Rev 481 [Shiffrin, ‘Promising’].
55.
Though I believe that this fundamental objection does apply to Scanlon’s account as I have interpreted it, a full discussion would require us to discuss Scanlon’s contractualism in depth, which I cannot attempt here. I do attempt it in Liam Murphy, ‘Nonlegislative Justification: Against Legalist Moral Theory’ (2020) [unpublished]. In effect, Scanlon’s position can, on my view, be seen as a version of the normative powers position discussed in the next Subpart, coupled with a contractualist justification for the claimed existence of the power.
56.
Joseph Raz, ‘Voluntary Obligations and Normative Powers II’ (1972) 46 Proceedings of the Aristotelian Society 79.
57.
Wesley N Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale LJ 16.
58.
In Darwall’s ‘second personal’ approach, these are classified as ‘transactions.’ See Darwall, ‘Demystifying Promises,’ supra note 18. See also Gary Watson, ‘Promises, Reasons, and Normative Powers’ in David Sobel & Steven Wall, eds, Reasons for Action (Cambridge, UK: Cambridge University Press, 2009) 155 [Watson, ‘Promises’]; Jody S Kraus, ‘Personal Sovereignty and Normative Power Skepticism’ (2009) 109 Colum L Rev Sidebar 126.
59.
By Lord Mansfield, in Kingston v Preston, (1773) 2 Doug 689. The same doctrine is found in the French Civil Code, art 1184. Margaret Gilbert’s argument that agreements are not promise pairs neglects implicit conditions. Margaret Gilbert, ‘Three Dogmas about Promising’ in Sheinman, Promises and Agreements, supra note 18, 80 at 96–8.
60.
See Andrei Marmor, ‘An Institutional Conception of Authority’ (2011) 39 Philosophy & Public Affairs 238.
61.
See Darwall, ‘Demystifying Promises,’ supra note 18; Shiffrin, ‘Promising,’ supra note 54; Watson, ‘Promises,’ supra note 58; Joseph Raz, ‘Normative Powers’ (2019), online: Social Science Research Network <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3379368> [unpublished] [Raz, ‘Normative Powers’]. Owens presents a long discussion of consent in Shaping the Normative Landscape. He would agree with the discussion that follows in the text but in his terms I am discussing morally significant choice, not true consent. True consent, for Owens, is a normative power that allows individuals to abolish, by declaration, the wrongful character of bare (non-harmful) wrongings. So, for Owens, true consent is another normative power, one grounded in our ‘permissive interest’ in being able to transform bare wrongings into permissible actions. I think this alleged power is an illusion. Owens, Shaping the Normative Landscape, supra note 21.
62.
See Heidi M Hurd, ‘The Moral Magic of Consent’ (1996) 2 Leg Theory 121.
63.
Darwall proposes that a shared basic ‘second-personal’ authority explains the possibility of promising and other normative transactions. To the response that this presupposed authority may be illusory, Darwall responds that ‘second personal reasons are no worse supported than those of any other kind,’ such as those of prudence or beneficence. See Darwall, ‘Demystifying Promises,’ supra note 18 at 272; Stephen Darwall, The Second Person Standpoint (Cambridge, MA: Harvard University Press, 2006) at 291. But if I am right, promising is the only example of the phenomenon he is describing, and I myself cannot regard the morality of promise as basic, in the same way that the morality of beneficence, or rights to bodily integrity are. Darwall also notes that his second-personal approach is compatible with contractualist moral theory. As noted in supra note 55, I believe that a contractualist account of normative powers is vulnerable to the same kind of objection that I make to Raz’s more direct account in the text; but I cannot make good on that claim here.
64.
Raz, ‘Is There a Reason,’ supra note 20; Raz, ‘Normative Powers,’ supra note 61.
65.
In early work, Raz focused on the relationship of promisor and promisee, one characterized by a particular kind of bond, ‘binding the promisor to be, in the matter of the promise, partial to the promisee. It obliges the promisor to regard the claim of the promisee as not just one of the many claims that every person has for his respect and help but as having peremptory force.’ Our belief that promises create obligations will be justified ‘if the creation of such special relationships between people is held to be valuable.’ Raz, ‘Promises and Obligations,’ supra note 44 at 227–8.
66.
This is a version of the circularity objection, discussed in supra note 48.
67.
Owens, Shaping the Normative Landscape, supra note 21.
68.
Ibid at 150–3.
69.
Rawls, ‘Two Concepts,’ supra note 15.
70.
See Donald H Regan, ‘Authority and Value: Reflections on Raz’s Morality of Freedom’ (1989) 62 S Cal L Rev 1036. For a contrary view, see David Enoch, ‘Wouldn’t It Be Nice If p, Therefore, p (for a moral p)’ (2009) 21 Utilitas 222; Thomas Nagel, ‘The Value of Inviolability’ in Paul Bloomfield, ed, Morality and Self-Interest (Oxford: Oxford University Press, 2007) 102.
71.
Raz, ‘Normative Powers,’ supra note 61.
72.
Ibid.
73.
Hume, Treatise of Human Nature, supra note 9, bk III, part II, s VI, para 15.
74.
Rawls, ‘Two Concepts,’ supra note 15 at 26.
75.
Raz, ‘Is There a Reason,’ supra note 20 at 76.
76.
A different way of arguing for the existence of the normative power to promise, which nonetheless has affinities with Raz’s approach, has been made by Shiffrin, ‘Promising,’ supra note 54. Shiffrin replies to doubts about the moral power to promise by arguing that the existence of this power must be assumed if we are to make sense of aspects of our lives of unquestioned moral value. Intimate relationships that display equality of concern and respect are of unquestioned value, and the ability to promise plays a necessary role in such relationships. The value of promising lies in its constitutive contribution to something else we all agree has value. So the argument is not that we have some power just because it is good if we do. Rather, it is a transcendental argument: it is obvious that such valuable relationships are possible; therefore, we must have the power to promise. This also casts the analogy with consent in a different light. Shiffrin’s argument is not that we have a whole lot of normative powers, among them that of consent, so why not promise too? Rather, just as we cannot make sense of autonomy without the ability to consent, we cannot make sense of morally valuable intimate relationships without the ability to make promises. Both abilities must be presupposed if we are to make sense of other uncontroversial aspects of our moral lives. I find the argument ingenious and compelling in its form but unconvincing in its content. Shiffrin holds that intimate relationships on grounds of equal respect are not possible without the ability to promise because ‘promises provide a unique and indispensable tool to manage and assuage vulnerabilities’ (at 508). My reaction is that while promises are such a tool, they do not seem to be unique or indispensable. The ability voluntarily to take on moral obligations to do something certainly can have value within close relationships. Promises are sometimes made to intimates (though among adults usually when things have gone off the rails a bit). To the extent that the parties are morally motivated and known by each other to be so, promises can have the effect of promoting trust and assurance as well as making it more likely that certain things will happen. This may certainly help assuage vulnerabilities. But the ability to make promises is not the only way to bring about trust, reliability, and assurance, or make it more likely that something will happen; mutual knowledge of mutual love and special concern may do away with the need for the tool of promising altogether. For promising to be essential, it would have to be the case that vulnerabilities can only be assuaged by the ability of the parties voluntarily to take on moral obligations to each other; that without the ability to add to existing moral reasons to act as we know those we love want us to act, truly intimate relations on equal terms would be impossible. Perhaps it is idiosyncratic of me to think that a relationship that depends on promising is less valuable than one in which equality and the absence of vulnerability is achieved naturally via mutual special concern. Be that as it may, it seems to me clear that the ability voluntarily to ramp up the moral reasons to act in ways that we know those we are close to want us to act is not essential to a decent intimate relationship.
77.
For further discussion, see GEM Anscombe, ‘Rules, Rights, and Promises’ (1978) 3 Midwest Studies in Philosophy 318.
78.
I am indebted here to discussion with Jed Lewinsohn.
79.
See HLA Hart, The Concept of Law (Oxford: Clarendon Press, 1994) at 203 [Hart, Concept of Law].
80.
As Ronald Dworkin held at the end of his life but not during what we might call his classical period. See Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Harvard University Press, 2011) at 405. For discussion, see Liam Murphy, What Makes Law (New York: Cambridge University Press, 2014) at 45–60.
81.
For criticism, see Brian Tamanaha, A General Jurisprudence of Law and Society (Oxford: Oxford University Press, 2001), ch 5.
82.
Stendhal, The Red and the Black (1830) (London: Penguin Classics, 2002).
83.
Hume, Treatise of Human Nature, supra note 9, bk III, part II.
84.
See Hart, Concept of Law, supra note 79 at 92–3.
85.
See Murphy, ‘Practice,’ supra note 2. On the broader issue of the divergence between contract and promise, see Seana Shiffrin’s celebrated article, ‘The Divergence of Contract and Promise’ (2007) 120 Harv L Rev 708, and my response, Liam Murphy, ‘Contract and Promise’ (2007) 120 Harv L Rev Forum 10.
86.
The term is coined in Liam Murphy & Thomas Nagel, The Myth of Ownership (Oxford: Oxford University Press, 2004) at 15, 31–7 [Murphy and Nagel, Myth of Ownership]; it was suggested to us by Sibylle Fischer.
87.
Nozick, Anarchy, supra note 6 at 331.
88.
The remainder of this Subpart recaps the central argument of Murphy and Nagel, Myth of Ownership, supra note 86.
89.
Another possible influence is the thought that market outcomes reflect moral desert and, therefore, ground an entitlement. This thought, however, implies extremely controversial commitments: that desert has a role at all in distributive justice and that laissez-faire market returns track desert. It also suffers a fatal flaw. In actual societies, market outcomes are not laissez-faire outcomes. Commitment to this way of thinking about tax justice therefore requires commitment to reform of economic institutions in the direction of laissez-faire. Further, this line of thought points us to a baseline of taxing so as to as closely as possible produce an outcome where people end up with what they deserve; it does not justify a pre-tax income baseline. I believe that the thought that I own my pre-tax income is the more significant explanation for everyday libertarianism.
90.
See Thomas Piketty, Capital in the Twenty-First Century (Cambridge, MA: Belknap Press, 2014) for a global view.
91.
For discussion of the concept of ideology in the critical theory tradition, see Raymond Geuss, The Idea of a Critical Theory (Cambridge, UK: Cambridge University Press, 1981).
92.
Karl Marx & Friedrich Engels, The German Ideology, reprinted in Marx and Engels Collected Works, supra note 8, vol. 5 at 60.
93.
See the works cited in supra notes 2 and 5.
94.
Felipe Jiménez argues that an instrumental justification of contract law supports formalism in adjudication. Felipe Jiménez, ‘The Case for Formalism in Contract Law Adjudication’ (2019) [unpublished manuscript].
95.
I am grateful to Patrick Emerton for raising this objection.
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University of Toronto Law Journal
Volume 70 • Number 4 • fall 2020
Pages: 453 - 488
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