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the morality of promise, so the thought goes, moral culpability – in breach, for instance – ought to play as much of a role here as it does there. And one of the most obvious features of contract law, as we know it, is that it does not.2

Saying as much, it should be noted, does not implicate a particularly farreaching or controversial view of the role of fault in the promissory domain. It is compatible with the notion, for instance, that once a valid promise is made, keeping it is a matter of strict liability, so that breaking it may be excusable, or justified, or plain wrong – but always a wrong. For even if this is so, the normative aftermath of the breach would be significantly informed by its moral quality: An explanation might always be called for (on this view it is, after all, always a wrong), but what kind of explanation is called for, whether an apology should also be made, what efforts to make reparations are required, how the promisee, in turn, should respond (and so on) are all matters the evaluation of which would undoubtedly be bound up with the circumstances of the breach and the degree of fault (if any) attributable to the promise breaker. In contract, by contrast, not only the liability but also the remedies available to the innocent party are largely insensitive to questions concerning fault on the part of the party in breach.

I. Promise De-moralized, Contract Moralized

Other than the rather rare, outright denial that there is any instructive analogy to be drawn between the law of contract and the morality of promise,3 such apparent discrepancies between them have been met with responses that I will describe as oriented in three directions. The first two types of response aim at explaining away or actually eroding the apparent discrepancy – either by exposing it as (for the most part) illusory, or by arguing for a reform of contract law aimed at minimizing it. The third, by contrast, takes (much of) the discrepancy to be far less troublesome; rather, is sees it as an inevitable manifestation of the fact that contract is, indeed, the legal equivalent – that is, the legal equivalent – of promise.

I refer to the first type of approach as “promise de-moralized” and the second as “contract moralized.” The former consists of arguments aimed at exposing at least some of the seeming discrepancies between contract and

2Here and elsewhere, I do not mean to suggest that fault does not play any role in the law of contract. George M. Cohen has been foremost in giving the lie to exaggerated views on this matter; see his The Fault Lines in Contract Damages 80 Virginia LR 1225 (1994), as well as his contribution to the present volume.

3Th e most notable example – at least for the proposition that the morality of promise is of no use for the task of developing “default rules” in contract law – is Richard Craswell’s Contract Law,

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promise as illusory, in the sense that they reflect an erroneous understanding of the morality of promise. Here, we find a broad range of claims meant to falsify certain central dimensions of a certain orthodoxy in the philosophy of promise, in particular the notion (or any or all of the constituent parts of the notion) that promissory obligations are moral obligations that significantly and centrally owe their existence to intentional acts by promisors, the purpose of which is the very assumption of moral (promissory) obligations.4 As such, it is an approach that has proved useful for quibbling with apparent discrepancies grouped around the theme of voluntariness, but which could also be brought to bear on issues concerning fault.

On the contract moralized side of things – contract overmoralized is what I really have in mind – we find the contrasting approach: The general orientation here is to argue that, inasmuch as discrepancies between contract law and the morality of promise are not illusory, they represent a flaw in contract law, and one that (other things being equal) ought to be rectified. Contract law, in other words, ought to be such that it reflects as closely as possible and enforces as consistently as possible the moral norms governing promise or agreement. Although contrasting, these approaches are not entirely contradictory or mutually exclusive; one’s overall view of the relationship between contract and promise may include elements of both. Having said that, it can be seen that the contract moralized approach would be the more conspicuous, and produce more scope for a critique of actual contract law regimes, the more it is rooted in an analysis of promise along the lines of what I have described, albeit loosely, as the philosophical orthodoxy in this matter – that is, the less tainted it is by the de-moralization of promise.

To stand out, and to inform a meaningful critique of contract law, however, the contract moralized approach need not be rooted in a crude version of the philosophical orthodoxy on promise. And inasmuch as such an approach is informed by a sufficiently sophisticated understanding of the morality of promise – one that eschews, for instance, radically individualistic notions of voluntariness and its implications, or eschews the simplistic notion that if promissory obligations are rooted in personal autonomy, then promisors

Default Rules, and the Philosophy of Promising 88 Michigan LR 489 (1989). For my response, see Remedial Rights and Substantive Rights in Contract Law 8 Legal Theory 313 (2002).

4Th e canonical example of the philosophical counterorthodoxy would, of course, be Hume. F.S. McNeily’s influential Promises De-Moralized (81 Phil. Rev. 63(1972)) is a notable modern attack on the type of orthodoxy I have in mind. Also notable is Neil MacCormick’s argument for seeing promissory obligations as located in reliance. (See Voluntary Obligations and Normative Powers 46 Proc. Aristotelian Soc. 59 (1972).) For a more recent contributions, see e.g., H. Sheinman’s Promise as Practice Reason (forthcoming in Acta Analytica), and Heidi M. Hurd, Promises Schomises (unpublished manuscript, on fi le with the University of Illinois Law

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must have complete control over the content and the normative implications of their promises – it need not have particularly radical implications in terms of all issues concerning the meaning and the appropriate scope of voluntariness or the implications of respect for personal autonomy in contract law. It need not, for example, lead to calls for a radical expansion of the freedom of contract, or for less regulation of contract terms, and so on. On the contrary, the moralizing approach can manifest itself in the view that contract law must be such that it can be used only for moral aims, be infused by requirements of good faith or hostility to sharp practice, and so on (ideas that can and, I would argue, ought to be defended on different grounds). But it does have a direct bearing on fault, leading naturally to calls for assigning it a far more central role in contract law than it currently occupies. Such a role may have implications, among other things, in terms of eroding the traditional claimant-centric approach to remedies for breach, and with it, possibly, the principle that, quite regardless of the defendant’s culpability or its absence, remedies are aimed at placing the claimant in as good a position as that in which she would have been absent the breach and no more; making specific performance (or injunction against breach) more readily available even where that principle does not strictly require it; rethinking the traditional aversion to punitive damages, and so on.

I said earlier that interest in the philosophical foundations of contract has been inconstant. Of late, it has certainly been on the ascent: After two decades or so during which the theory of contract, particularly in the United States, seems to have been dominated by economic analysis, recent years have seen a true revival in this particular branch of legal philosophy, and with it some instances of fresh enthusiasm for both the promise de-moralized and the contract moralized modes of analysis, with the latter, in particular, receiving a new lease of life, a phenomenon perhaps best understood as a backlash against the grand enterprise of de-moralizing contract (among other branches of the law) that is economic analysis.

I consider both approaches to be misguided. A substantive critique of any argument of the promise de-moralized variety can only be offered by way of a defense of a version of the philosophical orthodoxy against which it is aimed – something of no interest in this chapter.5 I will not engage directly with contract moralized as such, either – tempting as it might be, it is not clearly possible (or helpful anyway) to offer a critique of a general theoretical

Review). The most notable example of the “promise de-moralized” approach in contract theory is Patrick Atiyah’s in Promises, Morals, and Law (Oxford, 1981).

5For my own view, see From Promise to Contract: Towards a Liberal Theory of Promise ch.1 (Oxford, 2003). See also Joseph Raz’s critique of MacCormick’s view (Voluntary Obligations 46

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like, interpretive claims about the law of contract. For those who offer them in this way, at least, the first claim entails that the core contractual obligation is performance, and aptly so – it does not deny that a law of contract (or something like it) that does not take the core contractual obligation to be performance is conceivable, but it implies that it would be an institution inferior to the one with which we are familiar; whereas the second claim implies that the justification for facilitating and enforcing contracts that draws centrally on the value of voluntarily undertaken obligations is the best one, or the one that would justify a law of contract superior to a law that cannot be justified thus.

Th is does not mean, however, that those who make such claims (and who subscribe to both their descriptive and critical dimensions) are bound to think it possible or wise to systematically make contract more promise-like, or as promise-like as possible. Take, for instance, the second claim: It accounts for an important similarity between contract and promise, but leaves open the possibility of equally important differences. The justification for both institutions may draw centrally on the recognition of the value of voluntary obligations, but beyond that – that is, in terms of how the particular value is recognized or the particular reasons for recognizing it in each case – there may be crucial differences or even contrasts between them,9 diff erences that, in turn, can have a bearing on the selection of the rules that best contribute to the promotion of the overall value in question. Or, when it comes to the first claim, for closely related reasons – reasons pertaining to the nature of the law in general and its impact on the institution of agreement in particular – not every implication of the fact that the core obligation is performance that we find in the promissory domain can be gainfully incorporated into contract law. Simply enacting promissory norms or their closest approximation can be a self-defeating business, sometimes endangering rather than making more likely the realization of the very values by which they are informed, sometimes endangering the realization of other values to which the law ought to remain sensitive.

Th at is also part of the reason why the conceptual relationship between contract and promise cannot be settled by fiat, either official or private. Lawmakers may set out to make contract law the law of legally enforceable promises, no more or less, and may define “contract,” statutorily, in just such terms – that is, as legally enforceable promises – yet the success or failure of such an enterprise would not be entirely within their control: Legal

9On my own account, for instance, the value in the case of promise is the combination of cooperation and fostering personal relationships, whereas in contract it’s the combination of cooperation and protecting personal detachment – see supra note 5.

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Given the political as well as philosophical popularity and influence of the harm principle (at least since John Stuart Mill’s defense of a version of it in the mid-nineteenth century), and given how prominently it features in discussions of the moral limits of the law in general, I have always found it somewhat surprising that it features so rarely in discussions of the appropriate limits on the enforcement of contracts. I can think of two explanations, both of which ultimately fail to justify this neglect. The first has to do with the fact that, as a principle of freedom, the harm principle sets a limit not on state action in general, but on action that interferes directly and significantly with freedom – that is, the imposition of legal obligations, or the use of state coercion. Thus, it is naturally associated with debates concerning criminalization and state punishment, and much less so with a branch of the law generally thought to be concerned with the extension or exercise of freedom, not its curtailment; with rules that confer powers, not impose obligations. Another explanation might be that the predominant issue, when it comes to remedies for breach of contract, is not one of identifying a harmful wrong in the first place; rather, the presence and identity of a relevant harmful wrong in this domain tends to be taken for granted – it is the wrong of breach, and the resultant harm in terms of denying the innocent party the benefit performance would have brought – whereas the real debate surrounds the question of how exactly to respond to it; which remedy, that is, would be appropriate. And the harm principle is sometimes thought to be oblivious to the choice of response to a wrong once the threshold it sets has been cleared; it is sometimes thought to bear exclusively on the question of when the use of power is legitimate, not on how much power or what type of power to use.

Th e first explanation, I think, is not only misguided, but contains a degree of irony: The harm principle is, in fact, more straightforward to establish and has a more direct and less controversial bearing when it comes to contract law than when it comes to the much more open-ended domain of criminalization. This is not a proposition I can fully defend here, but the clue is in that very openendedness. The criminal law may respond, potentially, to any type of wrong, and for a whole variety of reasons. Criminalization, that is, has not one, but a fairly wide range of coexistent functions – protective, preventive, rehabilitative, retributive, communicative, and more – each bringing with it its own distinct justificatory apparatus.11 Th is at least indicates how difficult it would be to establish that under no circumstances, and by reference to any proper function of

11For a nice rebuttal of the notion that different functions and justifications of the criminal law are necessarily rivals among which one must make a choice, see J. Gardner, Crime: In Proportion and in Perspective, reprinted in Offences and Defences: Selected Essays in the Philosophy of Criminal Law 213, 214–15 (Oxford, 2007).