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Published online by Cambridge University Press: 20 July 2015
This essay offers some brief thoughts on Seana Shiffrin’s recent work regarding the divergence of contractual and promissory norms. I conclude that Shiffrin does not do enough to separate and account for the different consequentalist and deontological justifications underlying each institution, and does not do enough to explain how promises give rise to the “moral” duties she posits. I suggest, instead, that the divergence between contract and promise is justified by the different roles each institution plays in our lives, and that, in fact, keeping strictly promissory duties outside the scope of state coercion actually facilitates a strong culture of responsible moral agency.
Thanks to Jules Coleman, David Owens, Chris Essert, the Drake Law School Faculty Workshop, and the Creighton Law School Faculty Workshop for comments on earlier drafts; and to my invaluable research assistant, Ross Laird, for his hard work and insight.
1. See Shiffrin, Seana, “The Divergence of Contract and Promise,” (2007) 120 Harv. L. Rev. 708 Google Scholar.
2. See Fried, Barbara H., “What’s Morality Got to Do With It?” (2007) 120 Harv. L. Rev. Forum 53 Google Scholar; Fried, Charles, “The Convergence of Contract and Promise” (2007) 120 Harv. L. Rev. Forum 1 at 1Google Scholar; Kraus, Jody S., “The Correspondence of Contract and Promise” (2009) 109 Colum. L. Rev. 1603 Google Scholar; Lipshaw, Jeffrey M., “Objectivity and Subjectivity in Contract Law: A Copernican Response to Professor Shiffrin” (2008) 21 Can. J. L. & Jur. 399 Google Scholar; Murphy, Liam, “Contract and Promise” (2006) 120 Harv. L. Rev. Forum 10 (2007)Google Scholar; Pratt, Michael G., “Contract: Not Promise” (2008) 35 Fla. St. U. L. Rev. 801 at 802Google Scholar; Feldman, Steven W., “Autonomy and Accountability in the Law of Contracts” (2009) 58 Drake L. Rev. 177 Google Scholar. Indeed, Suffolk Law School plans to hold a symposium this spring celebrating the thirtieth anniversary of Charles Fried’s book Contract as Promise, much of will likely focus on Shiffrin’s recent work.
3. Shiffrin, supra note 1 at 713-14.
4. Ibid. at 712-13.
5. Ibid. at 725.
6. Ibid. at 727.
7. Ibid. at 741.
8. Ibid. at 749.
9. Owens, David, “A Simple Theory of Promising” (2006) 115 Phil. Rev. 51 at 69CrossRefGoogle Scholar.
10. Ibid. at 73. As I have said throughout this essay, consequentalists claim that efficiency and consequences give rise to “moral” obligations that are just as important as—indeed more important than—deontological duties. Thus, I realize that some confusion may arise from Owens’ use of the word “moral” as indicative of deontological reasoning. I believe, though, that this is the sense in which Owens intends the word here, and, likewise, the sense in which Mill and Kant intend it in the discussion below.
11. Ibid. at 70.
12. Raz, Joseph, “Practical Reason and Norms” (London, UK: Hutchison Press 1975)Google Scholar.
13. It may be that a contract is a promise to be liable for the foreseeable damages of breach; but it is not a promise to perform in the “authority-interest” sense that Owens describes.
14. Mill, John Stuart, On Liberty (1859)Google Scholar.
15. Ibid. On the use of the term “moral” here, see supra note 10.
16. For purposes of the following discussion, see generally Kant, Immanuel, The Metaphysics of Morals, trans. and ed. by Mary Gregor (Cambridge: Cambridge University Press, 1996) at 50—124 CrossRefGoogle Scholar. On use of the term “moral”, see supra note 10.
17. Kant, Immanuel, The Grounding of the Metaphysics of Morals, trans. by Ellington, James (Indianapolis, IN: Hackett, 1993) at 10 Google Scholar.
18. I have suggested above, I think, that the vitality or strength of the woman’s deontological duty to perform may depend upon the particular relationship and/or context involved. While I believe this is true, I am not prepared at this time to give an account of exactly how these factors are deontologically significant.