The Empire Strikes Back
Last Friday and Saturday, I attended a wonderful workshop at Georgetown hosted by Greg Klass on contracts and the philosophy of promising. It was fun to finally meet some of the folks whose work I have been reading for the last couple of years, as well as to meet some new people. At the end of the conference, I had a brief exchange with one of the other people that has had me thinking. One of us — I think it was him — observed that the last several years seems to have seen a revival of interest in contracts and the philosophy of promising. I think this is true. My admittedly extremely impressionistic sense is that, with a few exceptions, after Fried’s Contract as Promise — which has few defenders; including it would seem Fried himself — interest in the morality of promising as a basis for understanding contract was largely eclipsed by other debates in contact scholarship, such as the clash between economic theorists and their critics. Such no longer seems to be the case. Promise, it would seem, is back. Why?
For my part, I thank the British Empire. If you look at contracts scholarship in the UK and the Commonwealth, what you see is that promise never quite fell into the disrepute there that was heaped upon it within American legal theory. Grant Gilmore and before him the Legal Realists just didn’t happen in Britain. To be sure, British and Commonwealth scholars have always been aware of what the Realists and their progeny have been doing, but they haven’t felt called upon to be quite as impressed by it as have American legal thinkers. In Canada, for example, legal formalism was still thinkable as a serious philosophical approach to the law, providing a base from which the work of Ernest Weinrib and other neo-formalists to infiltrate south of the border. As an initial matter, contract doctrine is structured around promising, something that formalism allows one to take seriously. Likewise, it is striking that many of those doing work on contract and the philosophy of promising, even in the United States, trace their intellectual pedigrees back not to Charles Fried and Harvard but rather to Joseph Raz and Oxford. Indeed, at one point in the workshop one of the presenters turned to me and asked, “So are you a Raz student as well.” I admitted to being a sympathetic but had to confess my humbler intellectual origins. “As a child,” I said, “I was taught contracts by Crits at Harvard.” The field of promising, however, having been trampled over by successive invasions of Goths, Visigoths, Vandals, Realists, Gilmore-quoters, Crits, and legal economists, it would seem is being slowly reclaimed for the Empire.