From moral philosophy to contract law

remarks about methodology and responsibility

Abstract

Objective: In this article, my objective is to defend two theses. On the one hand, I intend to demonstrate how reflection on the foundations of contract law is connected to central questions of moral philosophy. I will claim that arguing for or against a given theory of contract law is an exercise in moral and political philosophy. On the other hand, I argue that responsibility practices in other areas provide relevant clues about the moral function of contracts. Our practices of responsibility, I argue, favour a contractual system that pays more attention to the parties who have been injured.

Method: This is a theoretical work, in the philosophy of law, which aims to rigorously analyse some central concepts of private law based on references in analytical theory. I take as a starting point the debate on the value of damages arising from breach of contract in the context of common law systems carried out by Seana Shiffrin and Steven Shavell, two of the most prominent contemporary theorists of contract law in the English-speaking world. Based on this debate and on methodological considerations inspired by Ronald Dworkin and H.L.A. Hart, I aim to defend the two central theses of this article.

Result: The article discusses several topics: notions of private law doctrine, considerations on the methodology of legal theory, our responsibility practices. This is an intentional transversality that demonstrates how contract law is a fertile field for philosophical reflection in a very relevant sense, that the very construction of the central concepts of contract law depends on taking positions in deep philosophical debates.

Contributions: In this article, I defend two controversial theses, one on the methodology of private law theories and the other on the relationship between contract law and practices of responsibility in a broader sense. The article contributes to the literature on the philosophy of private law and to the understanding of the relationship between contract law and moral philosophy. Furthermore, the literature discussed – especially the works of Steven Shavell, Seana Shiffrin, Tony Honoré and Bernard Williams – is little known in Brazil. In this sense, the article also contributes to the promotion of new debates within national literature.