Duty and Consequence: A Non-Conflating Theory of Promise and Contract
I argue that the debate between deontologists and consequentialists of contract law conflates and therefore unduly confuses the analysis of each of them. The debate is a reprise of the conflation of reason and knowledge. Present-day legal consequentialists see reason (pure or practical) as unhelpful or worse. Pragmatism, if anything, rules the day. But the present-day rationalists fare no better, seeking to make constitutive claims of knowledge on the basis of reason. Hence the concept of contract as promise has been subject to the criticism that it fails as an explanation of the law (versus an exposition of how our relationships ought to be ordered).
There is irony in the overwhelming interest of the consequentialist legal academy in trying to find a scientific answer to our most fundamental questions of duty and deontologists to defend morality consequentially. I argue that there are limits to each and that we operate consequentially and deontologically in the ordering of our private affairs, often simultaneously. The mistakes (typical of reason’s drive to a single maximand) are assuming, on one hand, that contractual consequentialism defines our commercial relationships, or, on the other, that contracts are capable of containing our moral obligations. Put another way, there is nothing moral about the contract (versus the underlying promise), and the conflation of the two is the source of the confusion over the limits of the law of contract. The moral or transcendental aspect of the contract is the underlying promise - its soul, so to speak - but the law can only doctor its body, what shows in the contract.
Contracts | Jurisprudence
Date of this Version
Jeffrey Marc Lipshaw, "Duty and Consequence: A Non-Conflating Theory of Promise and Contract" (February 26, 2005). bepress Legal Series. bepress Legal Series.Working Paper 472.