Faculty Post: The Law & Morality

by Professor David M. Phillips

Mills v. Wyman, an 1825 Massachusetts case, which is featured in one of the more popular first year casebooks, raises the question of the relationship between law and morality. Incurring various expenses, Daniel Mills cared for a 25 year old sick sailor, Levi Wyman, who then died. His father, Seth Wyman, wrote to Mills promising to pay for those expenses, but then reneged on the promise. Mills brought suit, but the Massachusetts Supreme Judicial Court affirmed a lower court holding that no action lay. Consideration is required to hold liable a promisor, and according to the court, Mills had given no consideration in return for Wyman’s promise; consideration could not consist of past action. Despite their respective holdings, the lower court had termed Wyman’s conduct “a strong example of particular injustice,” and the Supreme Judicial Court stated that Wyman had a “moral obligation” to fulfill the promise. But, to the court, a violation of a “moral duty” was not equivalent to a violation of a legal one.

Should law track morality, at least in the sense of a judge or other decision maker always arriving at her opinion of a “just” result? Samuel Williston, a famous early 20th century professor and scholar of contract law, presented two reasons why law and morality are not coterminous in contract law. He opined, first, that “the test of moral consideration must vary with the opinion of every individual,” and, second, “that if morality was to be the guide, every promise would be enforced.…” The fear expressed in the second reason is that, while it’s not nice to break our promises, we also value what has been called “freedom from contract.” We do not want our every utterance, even those that can be characterized as promises, to have legal consequences.

But if law and morality or justice are not coterminous, how far apart are they? While this subject is far too extensive to cover in a blog — books have been written about different conceptions of justice – let’s at least broach the subject with a few ideas. After all, law school students ponder this subject, and indeed lawyers should continue to think about such throughout their careers.

If law and near universal moral norms diverged significantly, the legal system would risk loss of legitimacy, and, in a free society, adherence to law derives in large part from a shared sense of its legitimacy. Enforcement or litigation is necessary, but more at the margins than in the ordinary life of most people. Citizenry would be less inclined to follow the law if doing so conflicted with what they perceived as their sense of morality. Juries in both criminal and civil cases would be far less inclined to follow a judge’s instructions if the results of their findings did not accord with their sense of right and wrong. And even judges have choices to make in deciding which of two doctrines to apply to a given fact situation. Does not their sense of justice influence that decision?

Contrast the Mills opinion with another classic Contracts opinion, that of Judge Benjamin Cardozo for a majority of the New York Court of Appeals in Jacobs & Young v. Kent, a 1921 case. A contractor sued for the balance due for constructing an expensive country home. The architect for the owner refused to certify the contractor’s work because the brand of pipe used differed from that specified in the contract, although the quality between the two was alleged to be the same and replacing the pipe would have entailed enormous economic waste. But, equally if not more important, Cardozo emphasized that the “omission of the prescribed brand of pipe was neither fraudulent nor willful.” Rather, use of the substitute pipe was an innocent mistake, and even the architect had failed to notice the discrepancy prior to its use in the house’s construction. In other words, to Cardozo the contractor was not “culpable.” The contractor could recover the balance due, with an offset if the owner could prove any reduction in the house’s value because of a different-make pipe (there was no difference in value). Cardozo quite transparently first arrived at a conclusion about the just result, finding most weighty “considerations…of equity and fairness,” and then selected a doctrinal basis to achieve that result.

Culpability plays a quite explicit role in both criminal law and tort law – intentional attempts to harm are considered far more serious that negligent or other acts that unintentionally also cause injury. Cardozo’s opinion illustrates that relative culpability can influence a court’s decision in a contract dispute as well. An intentional act causing harm is far more serious than other acts because it violates perhaps the most fundamental moral imperative we know: one should not do to others that which would be hateful if done to the actor. While our shared sense of morality and legal result do not always correspond, the former clearly does influence the latter. We understandably expect that, in most cases, a particular legal result will conform with our moral or just sense.

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