Contract and Promise
Responding to Seana Valentine Shiffrin, The Divergence of Contract and Promise , 120 Harv. L. Rev. 708 (2007)
Normative legal theory ought to consider the effects legal structures are likely to have on our ethical lives. However, Professor Shiffrin elaborates this thought in a particular way, in terms of the accommodation of moral agency: “[T]he content and normative justification for the legal practice must be acceptable to a reasonable moral agent with a coherent, stable, and unified personality.” The argument is subtle and complex; I will not be able to do justice to it here. Let me just say that I do not see why a conflict between (correct) ethical norms and (accepted) legal rules and their rationale need make the development of moral agency difficult. Even if the law makes it less likely that I will do the right thing, morally speaking, that does not seem to threaten my ability to understand the difference between right and wrong and to act accordingly. People who are brought up with a pernicious ethical view, say a racist one, might end up acting worse than they otherwise would, but they have not necessarily had their moral agency compromised. It seems that Professor Shiffrin’s demand is really that the law must accommodate moral moral agency — that is, the moral agency of a person who generally acts rightly, morally speaking. This explains why the demand for accommodation of moral agency is more fully spelled out in terms of three principles that speak largely to the effect on a person’s “moral virtue.” So what seems salient is not so much a concern about agency as such, but rather the thought that accepting the law and its rationale should not make it hard for us also to do the right thing, ethically speaking. If we could not avow both the law and the truth about ethics without falling into incoherence, thus compromising our agency, that would be bad, but we only reach this possible problem once we have established that it must be possible to avow both the law and the truth about ethics.
Professor Shiffrin’s focus on moral agency sits well with her theory of promise, which sees the ability to commit oneself through promises as a condition of the development of autonomous agency among equals. That is an original and important theory of promising, but it may or may not be right and I prefer to think that Professor Shiffrin’s point has quite general application.
So what first needs to be defended is the claim that the law or its rationale should not make it difficult to act rightly, or decently, or with minimal virtue. Professor Shiffrin’s formulations about maintaining moral virtue will strike some people as a bit moralistic. But her case does not depend just on “the intrinsic importance of moral agency to the person” but also on various other bad effects, such as the fact that “a just political and legal culture depends upon a social culture in which moral agency thrives.” The way I would like to understand this is as follows: It is myopic to think that we can ignore the law’s effects on people’s ethical lives — its effects on how they act in extralegal contexts — since there is not going to be any law pursuing aims, or at any rate, any just law pursuing just aims, if people do not make the extralegal decisions necessary to support the maintenance of just institutions over time. Just institutions, especially in a democracy, cannot simply be enforced on an amoral public. In other words, it is a mistake to reason about the law as if it is simply going to be imposed by an omnipotent Hobbesian sovereign. This strikes me as a very important contribution to legal theory in general.