Dori Kimel

The article examines the relationship between law and morality through the prism of the comparison between contract and promise, and seeks to expose as an over-simplification the notion that the law can systematically replicate or enforce moral practices without altering them in the process. It focuses on the apparent discord between the reluctance of courts to enforce contracts, and the view that the core contractual obligation is performance. Having argued that, by contrast to promise, the intrinsic function of contract is not to foster personal relationships but to facilitate personal detachment, the article explains the abovementioned discord as an implication of Mill’s harm principle.

The article examines the popular notion that liberalism is committed to a particularly rigid conception of freedom of contract. The article identifies the roots of that notion in certain misconceptions of modern liberalism and of the nature of contract, and argues instead liberal theory of contract is in fact compatible with, and some cases directly requires, various forms of intervention in the freedom of contract.