Morgan’s Minimalism: An Epistemic Approach to Contract Law

ABSTRACT

Lawyers tend to fall into two categories. Some argue that the law should reflect our moral duties to each other. Seen that way, law is a form of applied ethics, and the social sciences should play only a very limited role in the reasoning of legal scholars. Others argue that the law should be developed consistently with the conclusions of social science, arguing, for example, that the task of the law is to maximize economic efficiency, such that law must conform to economists’ conclusions about which rules are the most efficient. Jonathan Morgan rejects both of those approaches. He does not think that the law should mimic our moral duties, but he is also skeptical about the utility of social sciences in predicting the effects of law. He also argues that courts are not institutionally competent to deal with social-science evidence. However, he does not conclude that the social sciences must be rejected by legal scholarship. He himself uses them to establish that law is generally not needed to govern ongoing commercial relationships, that it is required only when such relationships break down, and that courts should focus on resolving such breakdowns as simply and predictably as possible. Based on those considerations, he sketches a minimalist vision of contract law and argues that it is the best we can hope for.

Keywords:

• epistemic capacity of courts
• instrumental legal theory
• Jonathan Morgan
• judicial expertise
• legal minimalism
• moral promissory theory
• right to do wrong

Notes

1. In private correspondence Morgan accepts this, but denies that he needs to meet the requirements of the Harm Principle. He claims that only non-instrumental accounts need to satisfy them. I disagree. If one believes in the Harm Principle, then every form of state action, including contract enforcement, needs to satisfy the principle, whether one’s rationale for the law is instrumental or not. To see the point, consider a law-and-economics account of the criminal law. Someone rationalizing the law of murder of the basis of economic theory is not exempt from having to show that prohibiting murder is compatible with the Harm Principle.

2. These will be addressed below.

3. See the special issue of Criminal Law and Philosophy on this topic (Renzo and Dimock 2013).

4. While Morgan suggests that a non-minimalist instrumental approach is likely to be ineffective or even counterproductive, he also believes that if the parties genuinely want enforcement of relational norms, then the courts should enforce them. Furthermore, the default rules should reflect what the majority of contracting parties want. Therefore, Morgan needs to show that commercial parties do indeed prefer a minimalist approach. He provides evidence that this is the case by looking at “markets” for law. Various jurisdictions compete with each other to attract litigation. They do so by encouraging parties to submit to the jurisdiction of their courts and to use their laws. The evidence, both from the supply side and the demand side, is that jurisdictions with a minimalist contract law, such as England, are preferred. Surveys of corporate counsels suggests that this is precisely because of the minimalist and flexible nature of English law. Thus, minimalism seems to be favored by commercial parties and should be embodied in English law as a default. This would still allow parties who want the enforcement of relational norms to provide for it in contracts that courts should enforce.

5. Above, I argued, following Friedman, that freedom had no intrinsic value. This, however, does not mean that freedom is not valuable instrumentally. When the state intervenes, as Smith suggests, to protect future freedom, it can do so solely on the basis that freedom is instrumentally valuable. One can think future freedom is worth protecting without thinking that it is intrinsically valuable.