The artificial morality of private law: The persistence of an illusion

In the public at large, property and contract law are commonly thought to reflect moral proprietary and promissory rights. Contemporary philosophers are mostly sceptical about natural property rights, though not about promissory rights. I argue at length that contract and promise, no less than property, can only be justified instrumentally – by appeal to the social good that these conventional practices produce. The aims of these practices need not be limited to social welfare but can include social justice and values more closely connected to the subject matter of the practices. The illusion that the law of the market reflects individual natural rights is harmful to public political discourse about institutional design. For example, it leads to ungrounded ideas about a right to freedom of contract and severely distorts the discussion of tax policy. The tenaciousness of this illusion deserves investigation. Promise and property are backed up and enforced by contract and property law. These legal orders necessarily take the form of a set of rules that specify legal rights and obligations. Living our lives in a social world structured in significant part by the law of the market, it is very hard to see those legal rights and obligations as not reflecting a deontological order of moral rights and obligations. We have here a case where misunderstanding the formation of legal normative orders leads us astray in our understanding of moral normative orders. This in turn hinders us in our ability to see clearly what the options for morally sound reform of the legal normative orders may be.