New book on capabilities and justice
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Virtue Ethics and Contract Law [UPDATED]

Mark D. White

Thanks to Larry Solum's indispensable Legal Theory blog, I discovered this paper by Chapin Cimino titled "Virtue and Contract Law," forthcoming in the Oregon Law Review:

For years, legal theory scholars have been obsessed with two dominant normative accounts: law and economics and individual rights. Recently, however, an old normative theory has resurfaced. Virtue theory, grounded in Aristotelian practical philosophy, has begun to receive attention from both historians and legal philosophers. In the past year, a small group of theorists has made a dramatic move: they have attempted to apply virtue theory to problems in contemporary law, in the form of a new “virtue jurisprudence.” Thus far, virtue jurisprudence scholars have limited their work to public law subjects. This article makes a substantial new contribution by extending virtue jurisprudence to a central area of private law: contracts.

Why contract law? This article contends that several difficult challenges in contract jurisprudence remain unresolved because neither law and economics nor rights theorists have been successful in accounting for the actual desires of contracting parties. For example, current theoretical frameworks fail to fully explain contract’s duality as both an economic and social institution. They fail to account for parties’ interest in both wealth maximization and justice. Virtue jurisprudence accounts for these critical dualities better than either law and economics or individual rights. Accordingly, this article suggests that virtue jurisprudence may reframe how both theorists and courts think about “the parties’ intent,” which is a foundational concept in any contract case.

This article takes on several tasks. It explains virtue theory in ways that show its relevance to contract law. It lays out a historical case for the importance of virtue theory to political liberalism and free markets. It explores several sites where current theoretical approaches do not fully capture contracting parties’ intent. Finally, it shows how virtue jurisprudence may offer a superior descriptive, and normative, account of intent-based doctrines in contract law. 

Cimino critiques both utilitarian/economic and deontological/rights-based approaches to contract law, and offers an interesting alternative. (For a book-length treatment of virtue ethics and the law, see Virtue Jurisprudence, edited by Colin Farrelly and Larry Solum.)

UPDATE (3-21-10): Jeremy Telman at ContractsProf Blog has a terrific breakdown of Cimino's article, concluding that

The paper thus elegantly develops an abstract apparatus and then deploys it strategically to illustrate not only its logical force and usefulness but also its proximity to our inarticulate intuitions about contract interpretation.  As I was considering Professor Cimino’s theory in connection with my own litigation experience, I could think of several examples of trial judges who, without any familiarity with the Nichomachean Ethics, decided issues with a keen eye to both the means and ends underlying the parties' intent.

Also, I have been in touch with Professor Cimino, who, in addition to being very gracious for the attention given her article, also tells me she will post a book review of the Farrelly and Solum book soon at her SSRN page.


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