Private Law as Morality: A Critique of Peter M. Gerhart’s Contract Law and Social Morality

This review essay offers a constructive critique of Peter M. Gerhart’s Contract Law and Social Morality (‘CLSM’); it examines, in a very preliminary way, whether humans—parties to contractual negotiation—ever behave in other-regarding, or altruistic, ways. The essay does this through three explorations or investigations. The first considers other-regarding behavior, or altruism, from a scientific perspective: is it possible that humans ever act out of concern for others? Second, it considers CLSM using ideas of altruism found in an eclectically selective use of philosophy.

Third, it investigates the concept of the other-regarding person in relation to contract law itself which, of course, is Gerhart’s focus in CLSM. The three explorations address whether humans are ever truly altruistic, or other-regarding, when the aim of liberal life—and so, presumably, of contract—is to satisfy one’s own life-projects (goals and objectives). Having considered other-regarding behavior in these three ways, we conclude, tentatively, that Gerhart’s theory accurately describes the real behavior of human actors who negotiate and then conclude a contract.