What is Contract Law 'About'? Speech Act Theory and a Critique of 'Skeletal Promises'
25 Pages Posted: 15 Jun 2006
What is contract law about? One way of looking at it is to conceive of the subject-matter of contract law in terms of promises - just as tort law arguably revolves around the concepts of accident or harm. Much like accidents - first-year law students are taught - promises are out there in the world, to be classified and distinguished so as to privilege some with legal enforceability. There is a language/world of promises, this approach seems to indicate, and a language/world of contracts. It is a main function of contract law to perform translations from the one to the other. Not all promises are normatively translatable into contracts, and the rules and conditions for translation are what is otherwise known as the law of formation of contract. Thus tort or contract law do not create the occurrences to which they subsequently apply - the world/language of accidents or promises, respectively. Unlike some areas more intensively laden with legal constructs - corporate law comes to mind - this aboutness approach considers contract law as initially regulative in its relation to promises. It regulates pre-legal promises, ascribing to some - constitutively - the status of a contract: a privileged, legally binding, enforceable promise. In the second section of this paper, an argument of P.S. Atiyah's is applied toward a critique of this aboutness approach. Atiyah is extremely dubious about the possibility of understanding contract law in terms of a set of rules 'about' promises. The point that I wish to make prior to that, in the first section, is that the aboutness approach is rationalized by a widely-held linguistic theory, known as standard speech act theory (SAT). This presents critics of the aboutness approach - such as Atiyah (and myself) - with the challenge of applying their critical insights to SAT, as well. The basic insight here is, that law cannot simply be about some extra-legal practice, such as contracts and promises, because law is participatingly constitutive of what contracts and promises - as social and linguistic entities - entail. After critiquing both the aboutness approach and SAT, a final section of the paper introduces an alternative approach to language and contract. This alternative approach provides a relational theory of promise, based in anthropological linguistics and sociolinguistics. Unlike SAT, the more relational approach to language and promise points us toward a social vision of contract law - and to the value of a relational framework for analyzing contracts. It also suggests the importance of a new model of contract, of normative importation, stressing the inevitable social and normative character of the utterances and actions that constitute contractual agreements.
Keywords: Contract Law, Standard Speech Act Theory, Atiyah's Critique, contracts and promises, tort law
JEL Classification: J41, K12, K10, K33, K49, K11, L14, M55, K00
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