1 george mason school of law contracts i perfectionism and paternalism f.h. buckley [email protected]
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George Mason School of Law
Contracts I
Perfectionism and Paternalism
F.H. Buckley
Next day’s assignment
Duress
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When promises shouldn’t be binding
What does it mean to choose badly?Immoral choices
Perfectionism
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When promises shouldn’t be binding
What does it mean to choose badly?Immoral choices
PerfectionismSelf-defeating choices
Capacity, Fraud
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When promises shouldn’t be binding
What does it mean to choose badly?Immoral choices
PerfectionismSelf-defeating choices
Capacity, FraudChoices that harm others
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Perfectionism
The subject has immoral preferences which the perfectionist would reform
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Perfectionism
Prior Questions: Should the state seek to correct the
morals of its citizens? Is it able to do so?
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What’s the opposite of Perfectionism?
Anti-perfectionism, or neutralism
Surrogacy Contracts
Should they be enforced? Are they per se immoral?
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Surrogacy Contracts
Should they be enforced? Note that the industry has expanded,
AFTER Baby M.
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Surrogacy Contracts
Should they be enforced? Note that the industry has expanded,
AFTER Baby M. Is that relevant?
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Surrogacy Contracts
Should they be enforced? Note that the industry has expanded,
AFTER Baby M. Are there ground rules you’d adopt to
make it more palatable?
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What about the following?
A sale of a kidney?
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What about the following?
A sale of a kidney? A futures contract for a kidney?
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What about the following?
The sale of a child?
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What about the following?
Hog-dog fights?
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What’s wrong with hog-dog fights?
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Meet Ari…arriving at Reagan Airport
Why do we find some bargains revolting?
And are our emotions coded with moral significance? Most of us feel repugnance at certain
things, even if we cannot articulate a rational basis for our feelings
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Are emotions moral?
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“The custom of looking upon
certain courses of conduct with
aversion is the essence of morality.”
James Fitzjames Stephen, Liberty, Equality, Fraternity
Are Emotions Moral?
Let’s say we are taught not to feel repugnance at certain acts, by a social worker. “It’s true that you find dog-baby clones
disturbing, but if you put aside your prejudices you’d see you have no rational basis for your feelings…”
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Are Emotions Moral?
Let’s say we are taught not to feel repugnance at certain acts, by a social worker. Have we lost something of value?
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Are Emotions Moral?
Most of us feel repugnance at certain things, even if we cannot articulate a rational basis for our feelings Should we fault those who lack the
appropriate feelings?
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Are Emotions Moral?
The Wisdom of Repugnance vs. The Stupidity of Dignity
Leon Kass and Stephen Pinker
Edmund Burke
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We are generally men of untaught feelings, that, instead of casting away all our old prejudices, we cherish them to a very considerable degree, and, to take more shame to ourselves, we cherish them because they are prejudices; and the longer they have lasted and the more generally they have prevailed, the more we cherish them.
Edmund Burke
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We are afraid to put men to live and trade each on his own private stock of reason, because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and of ages.
Are Emotions Moral?
Are moral feelings endogenous? Do they rub off on each other?
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Are Emotions Moral?
Are moral feelings endogenous? Do they rub off on each other? Is there such a thing as moral
corruption?
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Thomas De QuinceyOn Murder Considered as one of the Fine Arts
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If once a man indulges himself in murder, very soon he comes to think little of robbing, and from robbing he comes next to drinking and Sabbath breaking, and from that to incivility and procrastination. Once begin upon this downward path, you never know where you are to stop. Many a man dated his ruin from some murder or other that perhaps he thought little of at the time.
Are Emotions Moral?
Are we influenced by the moral feelings of those around us?
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Bad company…Hell’s Angels
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Which suggests two kinds of Perfectionism…
Private Perfectionism overrules personal choice to make the subject a better person
Social Perfectionism overrules personal choice to protect third parties from moral externalities
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Social Perfectionism
Mill’s harm principle: “The only purpose for which power can
rightfully be exercised over any member of a civilized community, against his will, is to prevent harm to others.” Mill, On Liberty (1859)
But what counts as a harm?
Externalities
Externalities are the third party effects where my actions either confer a benefit or impose a cost on others.
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Physical externalities
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Moral externalities
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Hells Angels
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Do we have a stake in who our neighbors are?
Three different kinds of capital
Physical Capital
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Social Capital
Physical capital Human Capital
Intelligence and health Private virtue, good character
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Social Capital
Physical capital Human Capital Social Capital
Do you have any preferences about your neighbors and fellow citizens?
The externalities of human capital
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Social Capital
How would you devise an immigration system?
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So what kind of social virtues would one look for?
The Bourgeois Virtues Honesty Fidelity Prudence Moderation Reciprocity
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How about the Romantic Virtues?
Transcendence Passion Joy
Bernini, St. Teresa
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Social Capital: Or maybe you just don’t want migration…
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Social Capital
Were there externality concerns in Baby M? Are surrogate parents any worse than
natural parents?
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Social Capital
Were there externality concerns in Baby M? Does surrogacy affect the feelings of
natural parents?
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Social Capital
Were there externality concerns in Baby M? Are surrogate parents any worse than
natural parents?
What about marriage vs. cohabitation?
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Marriage: Hewitt
Does marriage matter? The casebook describes the Hewitt’s
relationship as “merely lacking legal formality”: Is that how you see marriage?
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Marriage: Hewitt
Does marriage matter? The casebook describes the Hewitt’s
relationship as “merely lacking legal formality”: Is that how you see marriage? Glasgo: Did the plaintiff see it that way?
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Marriage Does the state have an interest in promotingmarriage? If so, why?
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Lee Marvin and Michelle Triola
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Marriage: Hewitt How do the incentives cut?
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Lee Marvin and Michelle Triola
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How to Protect Social Capital?
The Hart-Devlin Debate Lord Devlin, The Enforcement of Morals H.L.A. Hart, Law, Liberty and Morality
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Devlin’s Disintegration Thesis
Do societies disintegrate through a change in moral codes?
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Devlin’s Disintegration Thesis
Do societies disintegrate through a change in moral codes? If we protect snail darters, do we have
room for a moral ecology?
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The Battle of the Slippery Slopes
Both perfectionists and neutralists seem to argue from extreme possibilities
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The Battle of the Slippery Slopes
In a slippery slope, I want to do A and do not want to do B. But if I do A I am led into doing B.
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Perfectionism and Slippery Slopes
The Perfectionist fears that a slight change in moral habits will lead to the Decline and Fall of our civilization.
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Slippery Slopes in Rome
Couture, Les Romains de la décadence, 1847
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Neutralism and Slippery Slopes
The Neutralist fears that any kind of Perfectionism will lead to Holy Fascism.
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Slippery Slopes
The Battle of the Slippery Slopes. The Perfectionist fears that a slight
change in moral habits will lead to the Decline and Fall of our civilization.
The Neutralist fears that any kind of Perfectionism will lead to Holy Fascism.
Are those the only choices?
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Social vs Legal NormsDo social norms permit us to economize on legal norms?
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Or Are Social Norms the problem?
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Suppose we have banished any trace of self-regarding morality from the law. Are we finished?
Martha Nussbaum
The law, most of us would
agree, should be society’s protection
against prejudice
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Using Legal Norms to Police Social Norms
President Johnson signs the 1964 Civil Rights Act
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Devlin’s Disintegration Thesis
Do societies disintegrate through a change in moral codes?
If so, is that always a bad thing?
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Do Laws Have Expressive Effects?
President Johnson signs the 1964 Civil Rights Act
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Using Legal Norms to Police Social Norms
Mrs. Murphy’s Boarding Home
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Can the state be trusted to legislate morals?
Jim Crow laws were legislated by the states
