Peter A. Alces

A Theory of Contract Law: Empirical Insights and Moral Psychology

In the past few decades, scholars have offered positive, normative, and most recently, interpretive theories of contract law. These theories have proceeded primarily (indeed, necessarily) from deontological and consequentialist premises. In A Theory of Contract Law: Empirical Understandings and Moral Psychology, Professor Peter A. Alces confronts the leading interpretive theories of contract and demonstrates their interpretive doctrinal failures. Professor Alces presents the leading canonical cases that inform the extant theories of Contract law in both their historical and transactional contexts and, argues that moral psychology provides a better explanation for the contract doctrine than do alternative comprehensive interpretive approaches.

‘NEUROPHOBIA’, a Reply to Patterson

Space limitations preclude my addressing all of Professor Patterson’s misunderstanding, so I shall focus on the more troublesome instances: Patterson dismisses my book (‘Moral Conflict,’ textual page references herein are to the book) in terms borrowed fromMcGinn’s review of Changeux, concluding, with McGinn, that arguments promoting the neuroscientific perspectivemust bemetaphysical. Applied to ‘Moral Conflict’, Patterson’s central assertion is wrong, on at least three levels: first,McGinnwas responding toChangeux’s supposed reliance on neuroscience to inform critique of dualism and the establishment of materialism insofar as themetaphysical nature of ‘the good, the true, and the beautiful’ is concerned. ‘Moral Conflict’ is not concerned with the nature of such experiences; it is concerned with how the law takes account of brain states, a different matter altogether. We might be able to ‘see’ knowledge or even recklessness on an fMRI scan1; I make no argument about whether we will ever capture the experience of knowledge or recklessness in terms of brain state. Patterson here falls victim to the very Act/Object fallacy he accuses me of running ‘up against’ when he fails to see that McGinn’s critique of Changeux was based onMcGinn’swriting about ‘the activity of thinking’; I and the law care only about ‘what one thinks’. Next, though my argument need not be metaphysical, it actually is, at least according to Bennett andHacker, whose ‘Philosophical Foundations of Neuroscience’ provided the template for Patterson and Pardo’s ‘Minds, Brains, and Law’. My book follows themetaphysical eliminative materialism Bennett andHacker attribute to PaulChurchland(at 70–73). Finally, asserting that promotionofneuroscience requires engagementwith philosophy is akin to asserting that natural selectionmust account for theology.

The Unruliness of Rules

Analytical jurisprudence1 depends on a posited relation between rules and morality. Before we may answer persistent and important questions of legal theory indeed, before we can even know what those questions are we must understand not just the operation of rules but their operation in relation to morality. Once that relationship is formulated, we may then come to terms with the likes of inductive reasoning in Law, the role of precedent, and the fit, such as it is, between Natural Law and Positivism as well as even the coincidence