Daniel Markovits (Yale): Promise as Contract

Daniel Markovits is the Guido Calabresi Professor of Law at Yale Law School, and will be giving the sixth paper of Trinity term: "Promise as Contract".

Abstract: 

Philosophers and lawyers have long explained contract in terms of promise.  This is a natural way of thinking.  A contract at common law characteristically arises through an exchange of promises, in which legal obligations hew closely to moral form.  Doctrine could hardly make the role of promises in contract more obvious, and legal theory has enthusiastically embraced the invitation to explain contract in terms of promise.  As early as the 13th Century, Cardinal Hostiensis explained contractual obligation in terms of the principle that pacta sunt servanda.  More recently, Charles Fried built a systematic account of contract law whose promissory foundations were openly advertised in its name, Contract as Promise. 

For all its familiarity, however, the contract-as-promise approach is in an important way odd.  Promise is not itself well understood, especially when promises purport to establish free-standing obligations, unmoored from any social practices or general moral principles against harming.  In fact, many philosophers have doubted that promises standing alone can establish moral obligations at all.  Contract, by contrast, is without question one of the cornerstones of private law—as clear-cut and secure a case of legal obligation as exists anywhere in the contemporary legal order.  Of course, a generally legitimate lawgiver (and especially a legislature) might establish a class of legal obligations for any number of reasons, and the obligations would remain legally valid even if the lawgiver’s reasoning were cast in doubt.  But the contract-as-promise approach aspires to justify contract law not based on a lawgiver’s general authority to fix positive law but rather by appealing directly to particular moral norms.  And insofar as the morality of promise remains obscure, this amounts to grounding a settled legal regime on shifting moral sands.  Hardly an auspicious program.

These pages therefore propose to reverse the direction of explanation—to shore up the insecurities of the moral form by reference to the more firmly established legal form.  They will argue that certain features of the law that contract-as-promise imagines make contract an unusual and even unsatisfying case of promise in fact enable the promises that contracts contain to resolve conundrums that wrongfoot philosophical efforts to explain freestanding promissory obligation more generally.  Contracts, in other words, represent promise’s most fully-realized, secure expression.  Arguing this way around—building a model that explains how promises can establish moral obligations by using the forms and structures of contract—has its own intuitive appeal.  Contract is, after all, the most self-consciously articulate and firmly institutionalized promissory practice that we know.  This makes it natural to treat contract not as a degraded or even just exceptional but rather as the exemplary promissory form—to develop a view that explains Promise as Contract.

In addition to elaborating new accounts of promise and contract, the argument presented here develops a distinctive method.  Where the contract-as-promise tradition remains inside philosophy and simply applies philosophical methods to a legal subject, promise-as-contract adopts a genuinely interdisciplinary approach, which merges philosophical and legal methods into something different from either.

This seminar takes place in Massey Room, at Balliol College, University of Oxford (Broad St, Oxford OX1 3BJ) at 5:00pm on Thursday 29 May.

This event is open to anyone. No registration needed.

Pre-reading is desirable and strongly suggested, but not a requirement to attend.

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