Comments on: The Empire Strikes Back http://www.concurringopinions.com/archives/2007/09/the_empire_stri.html The Law, the Universe, and Everything Sun, 22 Nov 2009 04:22:46 -0700 http://wordpress.org/?v=2.8.3 hourly 1 By: Matthew Hartogh http://www.concurringopinions.com/archives/2007/09/the_empire_stri.html/comment-page-1#comment-52363 Matthew Hartogh Thu, 15 Nov 2007 14:29:13 +0000 http://www.solove.org/archives/2007/09/the-empire-strikes-back.html#comment-52363 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 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

]]> By: P. O'Donnell http://www.concurringopinions.com/archives/2007/09/the_empire_stri.html/comment-page-1#comment-52362 P. O'Donnell Thu, 20 Sep 2007 08:32:17 +0000 http://www.solove.org/archives/2007/09/the-empire-strikes-back.html#comment-52362 erratum: "first-rate job of assessing..." erratum: “first-rate job of assessing…”

]]> By: Patrick S. O'Donnell http://www.concurringopinions.com/archives/2007/09/the_empire_stri.html/comment-page-1#comment-52361 Patrick S. O'Donnell Thu, 20 Sep 2007 08:01:24 +0000 http://www.solove.org/archives/2007/09/the-empire-strikes-back.html#comment-52361 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. 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.

]]> By: Patrick S. O'Donnell http://www.concurringopinions.com/archives/2007/09/the_empire_stri.html/comment-page-1#comment-52360 Patrick S. O'Donnell Wed, 19 Sep 2007 00:11:04 +0000 http://www.solove.org/archives/2007/09/the-empire-strikes-back.html#comment-52360 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." 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.”

]]> By: Dudley http://www.concurringopinions.com/archives/2007/09/the_empire_stri.html/comment-page-1#comment-52359 Dudley Tue, 18 Sep 2007 20:39:15 +0000 http://www.solove.org/archives/2007/09/the-empire-strikes-back.html#comment-52359 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. 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.

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