Aditi Bagchi, ‘Contract and the Problem of Fickle People’

Most theories of promise and contract hold that these practices enhance our autonomy. This Article argues that such theories are excessively optimistic about the relationship between autonomy and long-term commitment. Because we continuously revise our values and plans, voluntary obligations enable earlier plans and express older values at the expense of updated plans and values. The challenge of individual moral discontinuity plays out differently for the morality of promise and contract, respectively.

This Article first recasts moral discontinuity, or fickleness, as a valuable moral feature of persons, albeit one that is in tension with other moral interests. Agents with active moral faculties under conditions of incomplete information should continually revise the commitments that motivate particular promises. In fact, even commitments simultaneously held by a single agent may be inconsistent with each other. These limitations of consistency and continuity reflect persistent agency.

Individuals differently prioritize stability and consistency, on the one hand, and revision and growth, on the other. Each of us can navigate the practice of promise to strike a personal balance between these values. Similar calibration is not possible within contract, however. The legal regime of contracting in a liberal state should not undertake to enforce a promise for its own sake, lest it underwrite a thick conception of personhood that favors moral stability over moral evolution. Contract law must locate its justification elsewhere. Indeed, American contract law avoids embracing any dogmatic theory of the relationship between autonomy and contract.

Bagchi, Aditi, Contract and the Problem of Fickle People (September 1, 2017). Wake Forest Law Review, volume 53, 2018.

First posted 2018-05-15 06:17:51

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