The Ambitions of Contract as Promise Thirty Years On ... - UCL

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Ambitions of Contract As Promise 24 August 2012 discussion draft: do not quote or reproduce without permission Rochefoucauld’s maxim that hypocrisy is the homage that vice pays to virtue, 4 the contemporary Chinese and Russian “legal” systems deploy the paraphernalia of the promissory system, but no party with the means and opportunity to address the real decision-makers and the factors that motivate them will omit to do so as effectively as possible.) Those who proclaim the superiority and sometimes the inevitability of the administrative model rarely embrace it in its full-blown form, preferring to see contract law as assimilable to other, more frankly administrative legal regimes, or at least doctrines within such regimes. The signal work is Robert Lee Hale’s Coercion and Distribution in a Supposedly Non-Coercive State. 5 Hale placed the concepts of duress and coercion, which the promissory regime treats as anomalies calling for occasional ad hoc administrative intervention and correction, at the heart of all supposedly voluntary transactions, 6 and reconceptualized them as covert exercises of power and dominance, which the government (the courts) can either endorse or correct. 7 A later, less thoroughgoing variant sought to assimilate contract law to tort, which is more readily conceived of as a regime for adjusting—on grounds of perceived 4 FRANÇOIS DUC DE LA ROCHEFOUCAULD, MORAL MAXIMES 218 5 38 POL. SCI. Q. 470 (1923). 6 Hale’s focus is primarily on property rights and the power dynamics created by property, but his logic may readily be extrapolated to contract. See id. at 474. 7 Id. at 471–72. 4
Ambitions of Contract As Promise 24 August 2012 discussion draft: do not quote or reproduce without permission fairness, social utility or redistribution—the burdens arising out of involuntary encounters. 8 The promissory model was associated with an individualistic ethos friendly to capitalism and free markets, the administrative one with a more socializing, communitarian ethos. The most prominent works in this genre were Grant Gilmore’s The Death of Contract 9 and Patrick Atiyah’s The Rise and Fall of Freedom of Contract. 10 Atiyah nicely captured the time’s anti- individualist and anti-capitalist tone: Promise-based liability rests upon a belief in the traditional liberal values of free choice. Many still admire these values but they bring with them, inescapably, many other consequences which are today less admired, especially in England. They bring, in particular, the recognition that some individuals are better equipped to exercise free choice than others, through natural aptitude, education, or the possession of wealth. And the greater is the scope for the exercise of free choice, the stronger is the tendency for these original inequalities to perpetuate themselves by maintaining or even increasing economic inequalities. 11 Atiyah is particularly concerned to associate with these—he thinks— increasingly obsolete values of promise-based contractual liability, the enforcement of purely executory contracts and a damage regime measured by 8 See John C. P. Goldberg & Benjamin C. Zipursky, Seeing Tort Law from the Internal Point of View: Holmes and Hart on Legal Duties,75 FORDHAM L. REV. 1563, 1571 n. 34 (2006). 9 GRANT GILMORE, THE DEATH OF CONTRACT (1974). 10 P.S. ATIYAH, THE RISE AND FALL OF FREEDOM OF CONTRACT (1979). Atiyah did acknowledge the inevitability of using the expectation measure in contracts whose purpose was the allocation of risks between the parties, but failed to see that most, if not all, contracts include exactly that purpose. See id. at 5. 11 Id. at 6. This was written before the Thatcher premiership. 5
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The Ambitions of Contract as Promise Thirty Years On ... - UCL

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