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Kraus on Normative Powers Skepticism

By Lawrence Solum

Jody S. Kraus (University of Virginia School of Law) has posted Personal Sovereignty and Normative Power Skepticism (Columbia Law Review Sidebar, Vol. 109) on SSRN. Here is the abstract:

In "The Correspondence of Contract and Promise," I claim that contract scholars have mistakenly presumed that they can assess the correspondence between contract and promise without first providing a theory of self-imposed moral responsibility that explains and justifies the promise principle. To illustrate the dependence of correspondence accounts of contract law on a theory of self-imposed moral responsibility, I demonstrate how a "personal sovereignty" account of individual autonomy explains how and why, contrary to existing correspondence theories, promissory responsibility corresponds to the rights and duties recognized by contract. Personal sovereignty recognizes the fundamental right of individuals not only to choose their system of ends but also to choose how to pursue those ends. According to this account of promising, individuals have the normative power to undertake self-imposed moral responsibilities (i.e., moral obligations) because such a power enhances personal sovereignty. Although I find this an intuitive understanding of the logic of moral justification, some philosophers have doubted that morality can simply "give moral effect" to attempts to create moral responsibility. In Part I of this companion piece, I explain the skeptical argument that has been leveled against theories of promissory obligation that posit a normative power to make a promise. In Part II, I argue that it has no force against the personal sovereignty account I offer.

Full post as published by Legal Theory Blog on December 14, 2009 (boomark / email).