Does Contract Law Need Morality?

Abstract

In "The Dignity of Commerce", Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the marketplace as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the market theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and theory should account for values other than economic efficiency is a longstanding debate. Whatever the merits of that debate, we conclude that contract law does not need morality as envisioned by Oman — a fluid, subjective, and seemingly instinctual approach to the morality of markets.