Law & Society Blog

I am remiss in pointing out that Jeffrey Lipshaw has posted a new draft of his Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise. I offered some thoughts on this interesting piece, which have been rendered moot in part. In particular, Lipshaw’s conception of compliance seems less at odds now with Kant’s freedom through action from (moral) duty. This sharpens the focus on the conflict Lipshaw perceives between the legal duty and a moral duty to which the law must necessarily remain blind:

In [Kant’s] philosophy, the duty not to enforce a promise is a mysterious and difficult one. Neither enforcing a promise nor being forced to perform or pay damages puts Kantian duty and Kelsenian positive law in conflict. We believe there is a moral right or a moral obligation (the transcendental “ought”), and the legal obligation (the material “ought”) corresponds. In that circumstance, whether or not we have confronted the mystery that calls fairness out of the very core of our moral consciousness, our actions in the material legal world are the same as those of one who is merely compelled or compliant. It is not so in the case of a duty not to enforce a promise. The legal “ought” gives an entitilement that the moral “ought” denies.

I am still tempted to feel that a large part of the problem and the mystery here is the choice of “duty” as the concept to express the intuition that unforseen developments may cause a bargain to appear unfair where it seemed fair originally. On the other hand, perhaps using the stark term of “duty,” while by definition ruling out that such duty could be legally cognizable, permits Lipshaw to force the issue.

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