Harvard Law Review
Gannett House
1511 Massachusetts Ave
Cambridge, MA 02138
Editorial Office:
617-495-7889
617-496-5053 (fax)
Business Office:
617-495-4650
617-495-2748 (fax)
|
|
|
| I agree with the general tenor and many of the details of Professor Seana Shiffrin’s lucid and closely reasoned account of the relation between standard contract doctrine and the morality of promising. In this brief Response, I take up two points with which I disagree. First, Professor Shiffrin argues that contract doctrine, by making expectation damages rather than specific performance the general or default remedy for breach, diverges from what the morality of promising requires. Second, she makes a similar argument about contract doctrine’s imposition of the burden of mitigating damages on the disappointed promisee. In respect to these two arguments she repeats what I think is a frequently made but mistaken argument in the economic literature on promising, which uses these very examples to claim that contract doctrine is not and should not be rooted in the morality of promising, but rather in the economics of efficiency. Professor Shiffrin does not argue for that conclusion. Rather, she would move contract doctrine into closer alignment with what she considers to be the requirements of the morality of promising.
|
| I begin with a general account, one with which I do not suppose Professor Shiffrin would fundamentally disagree, of what I mean by morality and the morality of promising. Every society of any size and complexity, and certainly any such society that seeks the advantages of modernity — such as specialization of functions, accomplishment of time-extended tasks, provision for the future, and accumulation and transmission of knowledge — requires rules to guide the conduct of individuals and to specify the institutions and mechanisms by which those rules are identified, interpreted, enforced, and changed. I think it is an affectation and a quibble to deny these rules the name of law. And to do their work, such systems of rules must display a significant degree of regularity, comprehensibility, and stability — what Professor Lon Fuller has called “the internal morality of law,” a sobriquet that distracts attention from the fact that such a system of rules may be compatible with, and do service to, regimes of very great cruelty, injustice, and oppression.
|
| Morality is concerned with how people should lead their lives and how they should treat each other. The precepts of morality for that reason will address many of the same aspects of behavior that are the subject of rules of law. By morality I do not mean what people think is the way they should live and how they should treat each other, nor how some person or group of persons think people should live their lives. Morality does not in the first degree describe attitudes, beliefs, or demands about these things, any more than mathematics in the first degree is about what people think, teach, or ordain about the domain of numbers and abstract relations. In both cases there is a fact of the matter: the gratuitous infliction of pain is wrong; 2 + 2 = 4. Only in the second degree is there a subject matter of what people believe and have believed on these scores, and how they come to believe these things. Those inquiries belong to the history, the sociology, the psychology of morals or mathematics, but they are not moral or mathematical inquiries except incidentally. I understand Professor Shiffrin’s article to be about morality in the first degree. How else to understand her talk of morality being about people living virtuous lives?
[ More ] |
Suggested citation: Charles Fried, The Convergence of Contract and Promise, 120 Harv. L. Rev. F. 1 (2007), http://www.harvardlawreview.org/forum/issues/120/jan07/cfried.pdf
|
© 2007 The Harvard Law Review Association
webmaster@harvardlawreview.org
|
|
