The Empire Strikes Back

SamAndBritannia.bmpLast Friday and Saturday, I attended a wonderful workshop at Georgetown hosted by Greg Klass on contracts and the philosophy of promising. It was fun to finally meet some of the folks whose work I have been reading for the last couple of years, as well as to meet some new people. At the end of the conference, I had a brief exchange with one of the other people that has had me thinking. One of us — I think it was him — observed that the last several years seems to have seen a revival of interest in contracts and the philosophy of promising. I think this is true. My admittedly extremely impressionistic sense is that, with a few exceptions, after Fried’s Contract as Promise — which has few defenders; including it would seem Fried himself — interest in the morality of promising as a basis for understanding contract was largely eclipsed by other debates in contact scholarship, such as the clash between economic theorists and their critics. Such no longer seems to be the case. Promise, it would seem, is back. Why?

For my part, I thank the British Empire. If you look at contracts scholarship in the UK and the Commonwealth, what you see is that promise never quite fell into the disrepute there that was heaped upon it within American legal theory. Grant Gilmore and before him the Legal Realists just didn’t happen in Britain. To be sure, British and Commonwealth scholars have always been aware of what the Realists and their progeny have been doing, but they haven’t felt called upon to be quite as impressed by it as have American legal thinkers. In Canada, for example, legal formalism was still thinkable as a serious philosophical approach to the law, providing a base from which the work of Ernest Weinrib and other neo-formalists to infiltrate south of the border. As an initial matter, contract doctrine is structured around promising, something that formalism allows one to take seriously. Likewise, it is striking that many of those doing work on contract and the philosophy of promising, even in the United States, trace their intellectual pedigrees back not to Charles Fried and Harvard but rather to Joseph Raz and Oxford. Indeed, at one point in the workshop one of the presenters turned to me and asked, “So are you a Raz student as well.” I admitted to being a sympathetic but had to confess my humbler intellectual origins. “As a child,” I said, “I was taught contracts by Crits at Harvard.” The field of promising, however, having been trampled over by successive invasions of Goths, Visigoths, Vandals, Realists, Gilmore-quoters, Crits, and legal economists, it would seem is being slowly reclaimed for the Empire.

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5 Responses

  1. Dudley says:

    I found JL Austin’s work on promising as a speech act to be the most enlightening on this topic. The question I have is whether there needs to be some kind of internal qualitative intentional state that supervenes on the properly phrased formalities to have a ‘true’ promise, one which finds an analog in the promisee–absence of mutual mistake in contract terms.

    Some might say that adding such a requirement might undo Austin’s insight altogether, but I don’t see how one can entirely dispense with intentionality. It’s Austin with a Griceian gloss.

  2. Patrick S. O'Donnell says:

    Nate,

    Interesting, and more than plausible. Dudley is onto something inasmuch as I think the influence of so-called ordinary language philosophy plays a prominent role here (prior to Raz).

    Perhaps you could provide a link to Schiffrin’s paper at the Harvard Law Review rather than just the SSRN link to the abstract: http://www.harvardlawreview.org/issues/120/jan07/shiffrin.shtml

    Nice responses there from Barbara Fried, Charles Fried, and Liam Murphy. It seems Liam Murphy is working on a book on “contract and promise.”

  3. Patrick S. O'Donnell says:

    I’m also wondering to what extent such promising (as Austin’s illocutionary speech act or performative utterance) is on the order of Marcel Mauss’s notion of reciprocal (and obligatory) gift-giving and therefore highly ritualized in the context of contract law (part of the class of ‘rituals of exchange’, and keeping in mind that ‘formality is one of the most frequently cited characteristics of ritual’), an appreciation of which might be greater on the other side of the Atlantic.

    And apropos Dudley’s comment, there’s a nice discussion of Searle’s work by Leo Zaibert which does a first-rate of assessing its strengths and weaknesses with regard to “Intentions, Promises, and Obligations,” in Barry Smith, ed., John Searle (Cambridge, UK: CUP, 2003), 52-84.

  4. P. O'Donnell says:

    erratum: “first-rate job of assessing…”

  5. Matthew Hartogh says:

    Nate,

    Austins speech act theory is instructive here, as is Derridas rejoinder. “Truth”, is relative, and sometimes paradoxical, and the article by professor Fried illumines that although “promise”, and “contract” have a lot in common, they are not always identical.

    Matthew Hartogh