Internal and External Questions. The most profound questions in ethics, social philosophy, and the philosophy of law are foundational; i.e., they are questions that call the entire framework of our ordinary evaluations into doubt in order to determine to what degree, if at all, that framework can be rationally defended. Such questions, called “external” by Rudolf Carnap, are currently dominating my own philosophical reflections and are forcing me to rethink a variety of positions I have in the past defended.

Like many people these days, I believe there is no general moral obligation to obey the law. I shall explain why there is no such moral obligation – and I shall clarify what I mean when I say there is no moral obligation to obey the law – as we proceed. But also like many people, I am unhappy with a position that would say there was no moral obligation to obey the law and then say no more about the law's moral significance. In our thinking about law in a resonably just society, we have a strong inclination to invest law with a sort of moral halo. It does not feel right to suggest that law is a morally neutral social fact, nor to suggest that law is merely a useful social technique.

In this essay, I shall try to account in part for law's moral halo. (Let me emphasize “in part”; I do not purport to say everything that could be said.) Because I share the widespread inclination to invest law with this halo, I shall not be interested in a merely historical account of how we come to see law with a halo – a pure “error theory” of law's halo, if you will. I want to justify the halo. On the other hand, the main way to justify the halo is to get clear just what law's moral significance is. It is unlikely that at the end of the process of clarification the halo will have exactly the shape or luminance that it had at the beginning.

I. INTRODUCTION

Twenty-five years is roughly the time that has elapsed since the exchange between H. L. A. Hart and Lon Fuller and the subsequent revival in this country of the natural law/positivism debate. During this time, a curious thing has happened to legal positivism. What began as a conceptual theory about the distinction between law and morality has now been turned, at least by some, into a moral theory. According to this theory, the reason we must see law and morality as separate is not (at least not entirely) because of the logic of our language, but because of the practical implications of holding one or the other of the two traditional views in this area. The natural law theorist, it is said, can connect law and morality only at the cost of investing official directives with undeserved moral authority, thus encouraging obedience where there should be none. The natural law position should therefore be rejected – and the positivist's accepted – on moral grounds.

'Tis true governments cannot be supported without great charge, and it is fit everyone who enjoys a share of the protection should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i.e., the consent of the majority giving it either by themselves or their representatives chosen by them. For if any one shall claim a power to lay and levy taxes on the people, by his own authority, and without such consent of the people, he thereby invades the fundamental law of property and subverts the end of government. For what property have I in that which another may by right take when he pleases to himself.

I. CONSTITUTIONAL ORIGINALISM

By “originalism” I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters. At least since Marbury, in which Chief Justice Marshall emphasized the significance of our Constitution's being a written document, originalism in one form or another has been a major theme in the American constitutional tradition.

INTRODUCTION

In any society relatively few disputes are brought to judges for resolution. Most are handled informally or forgotten. Fewer still are cases that go to trial. Most are settled. Compromises are reached even in cases where issues are hotly contested and where millions or billions of dollars in damages are claimed. Recently, for example, one of the most controversial lawsuits of our time, the Agent Orange case, was settled. In that case, veterans of the Vietnam War, their spouses, and their children alleged that a defoliant — Agent Orange – used in Southeast Asia contained dioxin and was responsible for deaths, debilities, miscarriages, and birth defects suffered by members of the plaintiff class. Class members argued that the manufacturers of the defoliant, seven major chemical companies, knew that it was tainted and should be made to compensate them for their injuries, claiming billions of dollars in damages. The case received national exposure and became a rallying point for veterans, a means they hoped to use to publicize their plight and to spur Congress to come to their aid. On the eve of trial, the case was settled. The defendants, who denied liability throughout the pretrial period, agreed to pay the veterans $180 million. In turn, the plaintiff class agreed to drop the suit. Thus ended a controversy which not only presented novel legal issues and tested the ability of the federal courts to handle complex lawsuits, but concerned the well-being of a large number of veterans, their spouses, and their handicapped children as well.

I shall be concerned in this paper with some philosophical puzzles raised by so-called “wrongful life” suits. These legal actions are obviously of great interest to lawyers and physicians, but philosophers might have a kind of professional interest in them too, since in a remarkably large number of them, judges have complained that the issues are too abstruse for the courts and belong more properly to philosophers and theologians. The issues that elicit this judicial frustration are those that require the application to border-line cases of such philosophically interesting concepts as acting, causing, and the one that especially interests me, harming.

I first became interested in the concept of harming in my work on the moral limits of the criminal law, where I had to come to terms with John Stuart Mill's famous “harm principle”–the principle that it is always a good reason in support of a criminal prohibition, indeed, the only legitimate reason, that it will prevent harm to persons other than the actor. I could not very well criticize that principle until I decided what the word “harm” must mean in its formulation. I gave what I took to be the requisite analysis of harm in my book Harm to Others. Here I wish to improve that analysis, examine its implications for civil as well as criminal liability, and test it on conceptually hard cases, especially cases of prenatal harming, that is, cases in which the wrongful causative conduct occurs before the victim's birth, and the harmed state that is its upshot consists in being born in an impaired condition.

I. Introduction

Two kinds of remedies have traditionally been employed for breach of contract: legal relief and equitable relief. Legal relief normally takes the form of money damages. Equitable relief normally consists either of specific performance or an injunction – that is, the party in breach may be ordered to perform an act or to refrain from performing an act. In this article I will use a “consent theory of contract” to assess the choice between money damages and specific performance. According to such a theory, contractual obligation is dependent on more fundamental entitlements of the parties and arises as a result of the parties' consent to transfer alienable rights.

My thesis will be that the normal rule favoring money damages should be replaced with one that presumptively favors specific performance unless the parties have consented to money damages instead. The principal obstacle to such an approach is the reluctance of courts to specifically enforce contracts for personal services. The philosophical distinction between alienable and inalienable rights bolsters this historical reticence, since a right to personal services may be seen as inalienable.

I will then explain why, if the subject matter of a contract for personal services is properly confined to an alienable right to money damages for failure to perform, specific enforcement of such contracts is no longer problematic. Finally, I shall consider whether the subject matter of contracts for corporate services is properly confined to money damages like contracts for personal services, or whether performance of corporate services can be made the subject of a valid rights transfer and judicially compelled in the same manner as contracts for external resources.

I

The existence of the legal profession is something most lawyers take for granted. Lawyers of course do many different things, and lead different sorts of lives, but those who make their living in the law tend to assume, without much reflection, that they have a bond or association of some sort with others who do the same and believe they share something important in common with them. It is not at all clear, however, what this common element is, and the great diversity of tasks that lawyers perform – representing litigants, counseling clients, advising legislators, administering government programs, and deciding cases – can easily make one doubt whether the search for a link leads to anything but empty generalities.

One may, of course, conclude that the main law jobs, as Karl Llewellyn called them, have nothing important in common, and that the legal profession is only a name for a disconnected collection of pursuits with no substance or reality of its own. This is not, however, a very satisfying view, to lawyers at least, and is likely to provoke the quick reply that what lawyers share in common is after all quite easy to discern. All lawyers, regardless of the nature of their work, possess a general knowledge of the law which they have acquired through a specialized program of instruction; laypersons lack such knowledge and it is this, one might argue, which marks the line between those who are lawyers and those who are not and, thus, defines the scope and nature of the profession.