Making and Keeping Contracts, 92 VIRGINIA L. REV. 1325 (2006) (symposium on contemporary political philosophy and private law)
A sympathetic reconstruction of our moral and legal practices surrounding agreements-a reconstruction that aspires to give not an external account of how these practices have developed and where they are heading but instead an internal account of how the practices are valued by those who participate in them-must be open to both elements of the morality of agreements. That is, a sympathetic reconstruction must help to explain both why we think it important to honor the agreements that we make and why we sometimes seek, and in other circumstances avoid, agreementbased forms of coordination. An account of agreements that claimed either that principles of agreement-keeping play no independent role in moral life or that the question whether to promote agreement-making carries no moral freight would necessarily beat a significant retreat from the lived experience of agreements. It is of course open to moral and legal argument (expressing a reformist impulse) to reject aspects of moral and legal practice, but an argument that does so bears a greater burden of persuasion in this respect. Certainly such an account of agreements would threaten, at least temporarily, to unsettle the reflective equilibrium between theory and intuition to which we properly aspire in these matters. Partial accounts of agreements-which address one element of the morality of agreements while overlooking or even excluding the other-must therefore explain their patterns of neglect, even apart from defending whatever view they take of the element of the morality of agreements to which they attend.
Date of Authorship for this Version
Markovits, Daniel, "Making and Keeping Contracts" (2006). Faculty Scholarship Series. Paper 420.