Duty and Consequence: A Non-Conflating Theory of Promise and Contract
Jeffrey M. Lipshaw
Suffolk University Law School
Cumberland Law Review, Vol. 36, Forthcoming
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 philosophic debate between rationalists and empiricists. Present-day legal contract consequentialists (in the empirical tradition) see reason (pure or practical) as unhelpful or worse in telling us what we ought to do. Pragmatism and consequential analysis of default rules, if anything, dominate the discussion. But the present-day contract rationalists fare no better, seeking to make constitutive claims of knowledge on the basis of reason. The deontological concept of contract as promise may well tell us how we ought to order our private relationships, but it does not really explain why the law is as it is.
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.
Number of Pages in PDF File: 28
Keywords: Deonotology, consequentialism, contract, promise, Kant, reason
JEL Classification: K10, K12Accepted Paper Series
Date posted: February 10, 2005
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