The Ambitions of Contract as Promise Thirty Years On ... - UCL

Ambitions of Contract As Promise 24 August 2012 discussion draft: do not quote or reproduce without permission
Metaphysical Elements of Justice. 21 That the two should arrive at similar
conclusions on many of the main points of contract doctrine 22 is striking.
Differences come to the fore when the issue is the effect of social arrangements
on the overall welfare of groups, 23 as opposed to the joint welfare of two
contracting parties. The convergence is particularly salient in the design of
institutions that facilitate the coordination, through agreements, of the energies
of otherwise independent persons. Legal regimes by their nature are concerned
with institutional design, and both the Kantian and utilitarian perspectives focus
on maximizing the preferences of individuals ex ante; that is, the two
perspectives focus on the design of legal regimes and doctrines that
collaborating individuals would themselves see as furthering the purposes they
hope to achieve in their free collaboration. There may be regret ex post, but the
Kantian perspective makes the individual responsible for his own regret; the
21 IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE (John Ladd trans., The Bobbs-
Merrill Co., 2d ed. 1999) (1797).
22 The strongest and most comprehensive statement of this convergence, from which I have drawn wisdom
andencouragement, is Jody S. Kraus, The Correspondence of Contract and Promise, 109 COLUM. L. REV. 1603,
1633–34 (2009) [hereinafter Kraus, Correspondence]. See also Jody S. Kraus, Philosophy of Contract Law, in
THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 687 (Jules Coleman & Scott
Shapiro eds., 2002).
Tort law is another matter. I had made a less comprehensive attempt at addressing the moral foundations
of tort law in Right and Wrong (1978) and An Anatomy of Values (1970). In Making Tort Law: What Should Be
Done and Who Should Do It (2003) (with David Rosenberg), our analysis and conclusions over a large range of
topics coincided with those of the economic analysis of the subject.
23 See RAWLS, supra note 15, §§ 5-6.
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