The Empire Strikes Back

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5 Responses

  1. Dudley says:

    I found JL Austin’s work on promising as a speech act to be the most enlightening on this topic. The question I have is whether there needs to be some kind of internal qualitative intentional state that supervenes on the properly phrased formalities to have a ‘true’ promise, one which finds an analog in the promisee–absence of mutual mistake in contract terms.

    Some might say that adding such a requirement might undo Austin’s insight altogether, but I don’t see how one can entirely dispense with intentionality. It’s Austin with a Griceian gloss.

  2. Patrick S. O'Donnell says:

    Nate,

    Interesting, and more than plausible. Dudley is onto something inasmuch as I think the influence of so-called ordinary language philosophy plays a prominent role here (prior to Raz).

    Perhaps you could provide a link to Schiffrin’s paper at the Harvard Law Review rather than just the SSRN link to the abstract: http://www.harvardlawreview.org/issues/120/jan07/shiffrin.shtml

    Nice responses there from Barbara Fried, Charles Fried, and Liam Murphy. It seems Liam Murphy is working on a book on “contract and promise.”

  3. Patrick S. O'Donnell says:

    I’m also wondering to what extent such promising (as Austin’s illocutionary speech act or performative utterance) is on the order of Marcel Mauss’s notion of reciprocal (and obligatory) gift-giving and therefore highly ritualized in the context of contract law (part of the class of ‘rituals of exchange’, and keeping in mind that ‘formality is one of the most frequently cited characteristics of ritual’), an appreciation of which might be greater on the other side of the Atlantic.

    And apropos Dudley’s comment, there’s a nice discussion of Searle’s work by Leo Zaibert which does a first-rate of assessing its strengths and weaknesses with regard to “Intentions, Promises, and Obligations,” in Barry Smith, ed., John Searle (Cambridge, UK: CUP, 2003), 52-84.

  4. P. O'Donnell says:

    erratum: “first-rate job of assessing…”

  5. Matthew Hartogh says:

    Nate,

    Austins speech act theory is instructive here, as is Derridas rejoinder. “Truth”, is relative, and sometimes paradoxical, and the article by professor Fried illumines that although “promise”, and “contract” have a lot in common, they are not always identical.

    Matthew Hartogh