Abstract Morality for an Abstract Order: Liberalism’s Difficult Problem

Mario J. Rizzo

Supreme Court Economic Review, 2015, vol. 23, issue 1, 7 - 34

Abstract: The first part of this Article outlines a conception of “the market” as an abstract and complex emergent order that is unplanned and has no specific ends. I draw on major classical liberal thinkers to elaborate this picture in order to emphasize the role that such a description plays in the liberal case for a market order. The second part describes in broad outline the kinds of rules needed to sustain the market. These rules can be reasonably described as “abstract.” The third part connects abstract moral and legal rules with a psychological framework known as construal level theory. This framework usefully connects the degree of abstraction or level at which a problem is construed with the evaluation and judgments of agents, including judges, litigants and the general public. I argue that beneficence (generosity) is a concrete virtue and justice is an abstract one. In a concrete construal of a moral or legal problem the tendency is to evaluate and decide on the basis of the concrete virtue rather than the abstract. The fourth and last part illustrates the general issues by discussing two relevant legal examples: the police power and the contract doctrine of unconscionability. I also illustrate the interplay between special interests and the benevolent attitudes of people spurred on by low-levels of problem construal.

Date: 2015
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