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criminalization, would it be legitimate to criminalize any instance of wrongful yet harmless conduct.12 Of course, even inasmuch as it is agreed that something more than a bare moral wrong needs to be targeted for criminalization to be legitimate, various potential alternatives to harm present themselves (of which offense is probably the most familiar). All such complications are largely absent when it comes to contract. The remit of the law of contract is, of course, far more limited, both in terms of its functions and possible justifications and, clearly, in terms of the range of wrongs it responds to as well as the type of harms with which those wrongs are normally associated. Indeed, when it comes to breach of contract, the wrong is just that – breach of contract. I will say more shortly about the related harms, but what is clear is that, unless the function of contract law is viewed as that of enforcing the morality of promise keeping for its own sake – something that would not only be illiberal and ill-advised on its own, but would also significantly undermine the propensity of contract law to fulfil the functions more commonly attributed to it – the threshold for legitimate remedial responses to a breach can only plausibly be harm. The imposition of remedial duties, on this view, would not be justified unless explicable as a means of preventing or redressing the harm associated with a breach.

Th e second possible explanation for the rarity of allusions to the harm principle in this context reflects a simple misconception, perhaps owing to welldocumented flaws with the classic defense of a harm principle, namely, Mill’s.13 Grounded, as it must be, in a comprehensive theory of political freedom, the harm principle need by no means be rendered silent as to the means by which harm is redressed once it has been identified. On the contrary, the same considerations establishing the imprudence of suppressing or punishing harmless conduct in the first place would normally continue to exert an inhibitive influence here. If the harm principle is grounded in the value of personal autonomy, for instance, those same considerations underlying it would not only reveal what should count as harm for its purposes, but also that the use of coercion aimed at redressing it must, other things being equal, involve the minimal cost to the personal autonomy of those against whom coercion is used.

IV. Harm, Fault, and Remedies for Breach

We are now in a position to appreciate the bearing that the harm principle has on the selection of remedies for breach of contract in general; once this is

12For a related critique of the harm principle in the context of criminalization, see J. Stanton-Ife, The Limits of Law in Stanford Encyclopedia of Philosophy (2006).

13See, e.g., John Gray’s comment on Mill in J. S. Mill, On Liberty and Other Essays xix (Oxford World’s Classics edition, 1998).

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demonstrated, we can turn our attention to its implications regarding fault in breach in particular.

Joseph Raz has argued that the harm principle lends support to reliance damages as the standard remedy for breach.14 Th is view seems to implicate a particular understanding of what the relevant harm in breach is, namely, the notion that, in this context at least, denying a party what it has not yet had – that is, the benefits of the bargain – is not harming, and hence not something the redress of which the harm principle would (other things being equal15) sanction. For my part, having taken my cue from him in terms of investigating the implications of support for the harm principle in this domain, I quibbled with Raz’s identification of the relevant harm. Thus, informed by the thought that denying a party something of value to which it is entitled is harming (and paradigmatically so), coupled with the notion that (again paradigmatically) parties to contract are entitled to each others’ performance, my own analysis has established specific performance as the standard (logically speaking, not statistically) remedy for breach, albeit a standard from which it is rather frequently necessary to depart. Such departures are called for in two types of scenario: either where a less intrusive remedy would be just as good as a means of preventing or redressing the same harm, or, far less routinely, in cases where notwithstanding the fact that full redress could be achieved only through specific performance, the case for awarding it is outweighed, in the circumstances, by sufficiently potent considerations against such an award. The first type of scenario is one in which the threshold set by the harm principle for actual enforcement of a contract has not been cleared16; the second type is one where it has been cleared, yet independent, non-harm-principle– derived considerations counsel against it (e.g., unusual hardship befalling the defendant, the specter of large-scale economic waste, the obvious impracticality of enforcement, etc.).17 It should be noted that the second type of scenario

14Book Review: Promises in Morality and Law 95 Harv. L.R. 916, 934 (1982).

15But see his account of how things may not be equal, id 937–8; and see my comments, supra note 5, 106–7.

16What the harm principle does mandate in such cases, of course, depends on the circumstances: Since the harm principle mandates only the least intrusive remedy with which to fully redress the harm, it would mandate no more than expectation damages where these would place the claimant in just as good a position, mandate no more than reliance damages where these suffice for the same purpose, and indeed rule out remedial intervention altogether where the breach causes no harm. Technically speaking, the latter type of case (e.g., in a contract for sale where another buyer is ready to step in and there are no additional losses relating to transaction costs, volume of transactions, etc.) should be described as a third type of scenario – that is, one where there is no harm to redress.

17Elements of the two scenarios can sometimes overlap: There may be cases, for instance, where the harm principle only mandates expectation damages (since their award would place the claimant in exactly as good a position as specific performance), yet some independent consideration

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is by no means an embarrassment for a harm-principle–based analysis; rather, it is a reminder of the fact that the harm principle sets but a threshold of legitimacy for the use of state power. It sets a necessary condition, not one that is necessary and sufficient.

How does fault come into this? Well, it barely does – and that is exactly my point. Unlike certain harms with which species of tort and criminal liabilities are concerned, the harm against which parties ought to be protected in the context of an institution whose main function is to facilitate arm’s length transactions – namely, the denial of valuable contractual entitlements – tends to be entirely insensitive to fault; its occurrence as well as magnitude does not usually correspond to the moral quality of the conduct that has brought it about. Whether nonperformance, possibly subject to the payment of appropriate damages, would cause that harm – that is, would leave the innocent party in an inferior position to that in which performance would have left it, denying it some or all of the benefits of the bargain – is a question the answer to which depends entirely on matters other than the moral culpability, if any, attending the breach – matters such as what is bought or sold, the purpose for which the parties have entered the contract, the availability and adequacy of alternatives, relevant changes in market conditions, and so on. Thus, a breach that is harmful in terms of the benefits of the bargain remains so even when committed absent fault, whereas a breach that is harmless in terms of the benefits of the bargain – say, where both parties enter the contract for profit, and damages reflecting the innocent party’s expectation interest would leave it in an identical position to that in which performance would have left it – remains harmless whether intentional or even spiteful. And if the harm principle delegitimizes remedial measures beyond that which is necessary to prevent or redress harm, and the potential harmfulness of breach of contract is insensitive to fault, then fault has no central role to play in devising the appropriate legal response to a breach – not in terms of identifying the harms against which parties ought to be protected in the first place, nor in terms of selecting the means by which to do so.

To be sure, the picture does not change when the focus shifts from ex post redress to ex ante deterrence: The coercive deterrence of harmless wrongs violates the harm principle in much the same way as the excessive redress of harmful wrongs. The availability (in principle) of specific performance in cases where nothing less would do for the purposes of securing for the innocent party the benefits of the bargain, coupled with the availability (in

militates against their award and in favor of the award of a “lesser” remedy, such as reliance damages.

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principle) of no more than the measure required (if any) for the same purposes in all other cases, represents all that there is for the law to do in terms of harm-prevention, both deterrence-wise and redress-wise: It redresses the relevant harm to the full but no more, and it fully deters harmful conduct but not conduct that is not harmful. By contrast, the availability in addition of remedies reflecting a particular judgment as to the moral culpability attending the breach – say, punitive damages for an intentional breach, or specific performance in such cases even when a less intrusive remedy would otherwise do – would usually serve no purpose other than that of, in effect, the suppression of immorality for its own sake.

Th us, it is a principle of political morality, rather than the notion that a breach is not or cannot be immoral, that explains the relative inattention to moral culpability in breach of contract, as well as the traditional aversion to punitive damages and much besides, and that, indeed, largely obviates the very question as to the (possible) immorality of a breach for the purposes of defending or criticizing remedial regimes.

I said largely obviates, and I said no central role, rather than no role whatsoever or obviates altogether. There is a reason for that – two minor twists I have thus far ignored, and which show that fault has some role to play after all, albeit a residual one.

Th e first has been implied already, in connection with the harm principle’s status as setting a necessary condition only, so that considerations arising in the circumstances of particular cases can militate against the award of a particular remedy even where the failure to award it would mean a failure to fully redress the harm caused by the breach. At common law, such considerations tend to receive direct attention in court particularly when it comes to the question of whether to order specific performance, since the award of that remedy is always discretionary. And in considering whether to exercise this discretion in favor of the claimant, courts sometimes advert to the question of fault, and rightly so, not only in light of the formal rule (a historical accident, really) by which specific performance can be granted only to a claimant who comes to court with “clean hands,”18 but also since it can sometimes shed light on the precise weight to be ascribed to specific considerations that potentially militate against enforcement. Take, for example, cases involving the judgment that the award of specific performance would be excessively harsh on the defendant in the circumstances: Such a judgment, like most other judgments to the effect that the position of the defendant merits special sympathy

18Th is rule, as well as the discretionary status of specific performance, reflects this remedy’s origins in Equity.