George Mason School of Law

1. George Mason School of Law Contracts I Perfectionism and Paternalism F.H. Buckley fbuckley@gmu.edu

2. Next day’s assignment • Duress

3. When promises shouldn’t be binding • What does it mean to choose badly? • Immoral choices • Perfectionism

4. When promises shouldn’t be binding • What does it mean to choose badly? • Immoral choices • Perfectionism • Self-defeating choices • Capacity, Fraud

5. When promises shouldn’t be binding • What does it mean to choose badly? • Immoral choices • Perfectionism • Self-defeating choices • Capacity, Fraud • Choices that harm others

6. Perfectionism • The subject has immoral preferences which the perfectionist would reform

7. Perfectionism • Prior Questions: • Should the state seek to correct the morals of its citizens? • Is it able to do so?

8. What’s the opposite of Perfectionism? • Anti-perfectionism, or neutralism

9. Surrogacy Contracts • Should they be enforced? • Are they per se immoral?

10. Surrogacy Contracts • Should they be enforced? • Note that the industry has expanded, AFTER Baby M.

11. Surrogacy Contracts • Should they be enforced? • Note that the industry has expanded, AFTER Baby M. • Is that relevant?

12. 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?

13. What about the following? • A sale of a kidney?

14. What about the following? • A sale of a kidney? • A futures contract for a kidney?

15. What about the following? • The sale of a child?

16. What about the following? • Hog-dog fights?

17. What’s wrong with hog-dog fights? Meet Ari… arriving at Reagan Airport

18. 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 18

19. Are emotions moral? “The custom of looking upon certain courses of conduct with aversion is the essence of morality.” James Fitzjames Stephen, Liberty, Equality, Fraternity 19

20. 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…”

21. 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?

22. 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?

23. Are Emotions Moral? • The Wisdom of Repugnance vs. The Stupidity of Dignity Leon Kass and Stephen Pinker

24. Edmund Burke 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.

25. Edmund Burke 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.

26. Are Emotions Moral? • Are moral feelings endogenous? Do they rub off on each other?

27. Are Emotions Moral? • Are moral feelings endogenous? Do they rub off on each other? • Is there such a thing as moral corruption?

28. Thomas De QuinceyOn Murder Considered as one of the Fine Arts 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.

29. Are Emotions Moral? • Are we influenced by the moral feelings of those around us? 29

30. Bad company…Hell’s Angels

31. 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

32. 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?

33. Externalities • Externalities are the third party effects where my actions either confer a benefit or impose a cost on others.

34. Physical externalities

35. Moral externalities Hells Angels

36. Do we have a stake in who our neighbors are?Three different kinds of capital • Physical Capital

37. Social Capital • Physical capital • Human Capital • Intelligence and health • Private virtue, good character

38. Social Capital • Physical capital • Human Capital • Social Capital • Do you have any preferences about your neighbors and fellow citizens? • The externalities of human capital

39. Social Capital • How would you devise an immigration system?

40. So what kind of social virtues would one look for? • The Bourgeois Virtues • Honesty • Fidelity • Prudence • Moderation • Reciprocity

41. How about the Romantic Virtues? • Transcendence • Passion • Joy Bernini, St. Teresa

42. Social Capital: Or maybe you just don’t want migration…

43. Social Capital • Were there externality concerns in Baby M? • Are surrogate parents any worse than natural parents?

44. Social Capital • Were there externality concerns in Baby M? • Does surrogacy affect the feelings of natural parents?

45. Social Capital Were there externality concerns in Baby M? Are surrogate parents any worse than natural parents? What about marriage vs. cohabitation? 45

46. Marriage: Hewitt • Does marriage matter? • The casebook describes the Hewitt’s relationship as “merely lacking legal formality”: Is that how you see marriage?

47. 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?

48. Marriage Lee Marvin and Michelle Triola • Does the state have an interest in promoting marriage? • If so, why? 48

49. Marriage: Hewitt Lee Marvin and Michelle Triola • How do the incentives cut? 49

50. How to Protect Social Capital? • The Hart-Devlin Debate • Lord Devlin, The Enforcement of Morals • H.L.A. Hart, Law, Liberty and Morality