Theories of Contract Law and Enforcing Promissory Morality: Comments on Charles Fried

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INTRODUCTION

Charles Fried's 1981 book, Contract as Promise, started the modern discussion in the United States and many other places on contract theory, and remains an influential view to which all contract theorists who have come later must respond. This Article will consider two important themes connected with Fried's project: first, the nature of the theoretical claims in Contract as Promise; and second, the question of whether contract law, especially when this area is equated with the enforcement of promises, is in tension with John Stuart Mill's "Harm Principle." (1)

Part I of this Article looks at Fried's book from the perspective of theory construction, evaluating Fried's claims in the context of the project of offering a theory of contract law. Part II looks at the way that Contract as Promise has become the center of a question about whether contract law "enforces morality" in an inappropriate way.

I. THEORIES OF CONTRACT LAW

Theories about doctrinal areas of law--theories of property, contract, or tort--are common and well-known. (2) Most of these theories sit uneasily between description and prescription/evaluation. On one hand, they purport to fit most of the existing rules and practices; on the other hand, they re-characterize the practices to make them as coherent and/or as morally attractive as possible. (3) This sort of approach to theorizing comes under various titles: rational reconstruction, "philosophical foundations of the common law," and constructive interpretation. (4) As both Ronald Dworkin and Michael Moore have argued, there is a strong connection between theories of law understood this way, and the way (Anglo-American) judges and advocates argue about what the law requires in some novel cases. (5)

The subtitle of Charles Fried's enormously influential book, Contract as Promise, is "A Theory of Contractual Obligation." However, the extent to which the book presents a theory of contract law remains controversial and unsettled. In the book, Fried proclaims that "the promise principle" is "the moral basis of contract law." (6) Does this mean that the enforcement of promises is the moral basis for having contract law, or perhaps for shaping contract-law doctrine one way rather than another? The question of whether there is something problematic about having the enforcement of promises as the primary justification of contract law will be explored at greater length in Part II.

Fried wrote in a more recent piece that he saw "contract as rooted in, and underwritten by, the morality of promising. ..." (7) Fried presents his promissory theory of contract law as a variation of the will theory of contracts, (8) which has deep roots, especially in Continental european theories about contract law. (9) Will theories and their promissory-theory variations have a long history and have been subject to detailed criticism before, (10) though Fried's book does not tarry long to reconsider those old debates, considering them mostly in passing, while concentrating more on contemporary alternative theories of contract law.

A question first about the scope of the claim Fried makes in Contract as Promise: Is Fried's theory of contract law "as promise" a general and universal theory, covering not only all past and current contract-law systems, but all possible ones? or is it less ambitious, perhaps a theory only of American contract law--or, given that contract law is primarily a matter of state law and that it changes significantly over time--perhaps Contract as Promise should be seen only as a theory of Massachusetts contract law circa 1981?

While there is little textual support for that last, most-narrow reading--there are plentiful citations from jurisdictions other than Massachusetts--the book contains relatively few citations to non-United States contract-law cases, and these are mostly older English cases, which American courts have usually accepted as highly persuasive, and, at times, as paradigm cases (for certain doctrines). …