Legal Theory Essay

Inducing Moral Deliberation: On the Occasional Virtues of Fog

Vol. 123 No. 5 Legal standards are often valued for their flexibility and their susceptibility to nuanced, context-sensitive interpretation. Legal rules are usually celebrated for their clarity and certainty. The received wisdom is that the merits of the one form represent the demerits of the other. Standards, for instance, facilitate contextual, individualized application of the law and allow for greater adaptation to changing circum¬stances and an unfolding evolution of legal understanding, but these virtues are thought to come, unfortunately, at the expense of notice and transparency.
Contract Law Article

The Divergence of Contract and Promise

Vol. 120 No. 3 In U.S. law, a contract is described as a legally enforceable promise. So to make a contract, one must make a promise. The legal norms regulating these promises diverge in substance from the moral norms that apply to them. This divergence raises questions about how the moral agent is to navigate both the legal and moral systems. This Article provides a new framework to evaluate the divergence between legal norms and moral norms generally and applies it to the case of contracts and promises. It introduces and defends an approach to the relationship between morality and law that adopts the perspective of moral agents subject to both sets of norms and argues that the law should accommodate the needs of moral agency. Although the law should not aim to enforce interpersonal morality as such, the law’s content should be compatible with the conditions necessary for moral agency to flourish. Some aspects of contract not only fail to support the morally decent person, but also contribute to a legal and social culture that is difficult for the morally decent person to accept. Indeed, U.S. contract law may sometimes make it harder for the morally decent person to behave decently.