Substantive Justification in Contract Cases — the Primacy of Rightness Reasons

Abstract

My theses in this essay are: (1) that the essential content of judicial justifications includes two basic types of reasons which I will call authoritative and substantive. Authoritative reasons are those which appeal primarily to the legal authoritativeness of statutes, cases, contracts, and other antecedent forms of law. (Elsewhere, I have also called these “formal” reasons.) Substantive reasons do not appeal to legal authority. They stand on their own, and consist of moral, political, economic, or other social considerations, (2) that although authoritative reasons are numerically far more common in judicial justifications, substantive reasons are no less important, especially in the American legal system, (3) that the types of substantive reasons that figure injudicial justifications may be subdivided into three varieties: goal reasons, Tightness reasons, and institutional reasons, concepts I will define, (4) that rightness reasons and institutional reasons have historically been and continue to be the overwhelmingly dominant varieties of substantive reasons in judicial justification in the general common law of contract in particular, with goal reasons a distant third, despite the fact that goal reasons seem also to be widely available in the cases,