Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise

Law, Culture and the Humanities, 2006

35 Pages Posted: 15 Jun 2005  

Jeffrey M. Lipshaw

Suffolk University Law School

Abstract

In this essay, I suggest the difference between the law of consensual relationships (i.e., contracts) and the morality of those relationships is one of compulsion and freedom. In the former, we find ourselves being compelled by, or compliant with, a rule some distance removed from the basic norm; in the latter we find ourselves in touch, constantly and sometimes in the face of more visceral obligatory rules, with a far deeper and more fundamental (transcendental) sense of fairness. Moral decisions are the ones made without any threat of compulsion from the law. The clearest example in commercial relationship of a moral decision unfettered by the positive law is the promisee's choice not to enforce an otherwise legally binding contract. As a matter of logic, if not practice, a court cannot impose a duty to do so, either as a matter of positive law theory or natural law theory that contends law is not law unless it rests on a deep structure of values like fairness or justice or liberty. Nevertheless, that sense of obligation on the part of the promisee is regularly sensed and even acted upon in commercial relationships, and its source is the will of the autonomous agent who has not traded freedom for compulsion or compliance.

Keywords: Contracts, Kelsen, positivism, promise, duty, Dworkin, morality, freedom, compulsion, compliance

JEL Classification: K12

Suggested Citation

Lipshaw, Jeffrey M., Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise. Law, Culture and the Humanities, 2006. Available at SSRN: https://ssrn.com/abstract=742844 or http://dx.doi.org/10.2139/ssrn.742844

Jeffrey M. Lipshaw (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

HOME PAGE: http://ssrn.com/author=381790

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