Monday, June 19, 2017

La Rochefoucauld’s Maxims (2)

The epigraph is germane to our third maxim from La Rochefoucauld below.

“The argument for the promising rule goes by appeal to the value that the practice of promising has for us as members of a society. The chief value of the practice of promising is social coordination and cooperation—promises (and cognate phenomena like contracts and agreements) allow people to trust one another, which in turn allows for all sorts of cooperative benefits, e.g., divisions of labor, solutions to coordination problems and collective action problems, exits from prisoners dilemmas, etc. The theory is first offered by Hobbes (Leviathan xiii–xv).

Hobbes’ framework for assessing the rationality of moral rules assumes that the over-arching goal is to exit the state of nature into a civil society. In the Hobbesian state of nature, our expansive natural rights, our over-large appetites and our natural inclination to dominate result in constant, irresolvable conflict, what Hobbes called the war of all against all (Lev. xiii: 88–89). Against this backdrop Hobbes claims that practices that allow us to escape this condition are ‘Laws of Nature.’ i.e., mandates of rational self-interest,* and that keeping promises is one of those practices (Lev. xv: 100 ff). Hobbes takes promises to be a part of the larger and more complex system of contract. A contract for Hobbes is a mutual transfer of rights in things. A covenant is a contract where one of the parties must perform after the other, and thus promises the first performer his later performance. Hobbes takes covenants to be the ‘fountain and original of justice,’ and the keeping of covenants is a mandate of the Law of Nature (Lev. xiv: 100).

Hobbes’ picture is complicated by the fact that he doesn’t think that the appreciation of the fact that promise-keeping is valuable is sufficient to guarantee compliance. He thinks this because he thinks that people are passionate creatures whose reason is often overwhelmed by those passions, and because he conceives of covenants as cases where the promisee puts himself at risk by trusting the promisor. Such risk is forbidden by the first law of nature (self-defense) unless the promisee has some very good reason to assume that the promiser won’t betray his trust. And since mere reason isn't enough (ex hypothesi) to make that guarantee, promisees can’t trust promisers. As such, Hobbes claims that promises made merely on the grounds of trust are not promises at all (cf. Lev. xiv: 96 & xv: 102). Hobbes’ solution is to ground promissory obligations not directly in the rationality of keeping promises, but rather in the rational fear of the sovereign, whose job it is to enforce contracts by punishing renegers. In this way, Hobbes has an indirect justification of promissory obligations by appeal to the rationality of promise-keeping: Rationality mandates the establishment of a sovereign, who will enforce contracts by threat of punishment. The existence of the plausible threat from the sovereign in turn makes promise keeping rational. So promises aren’t a way to exit the state of nature, rather they are a necessary component of civil society made possible by the exit from the state of nature by the establishment of a sovereign.”—Allen Habib 

* That the Hobbesian “Laws of Nature” are merely “mandates of self-interest” is an eminently arguable proposition and one I believe, after S.A. Lloyd, to be false. Lloyd argues “that the only end reliably served by the Laws of Nature is the common good, or the good of humanity generally, and not the preservation or profit of the individual agent who is to follow those laws.” Please see her Morality in the Philosophy Thomas Hobbes: Cases in the Law of Nature (Cambridge University Press, 2009), as well as her earlier book, Ideals as Interests in Hobbes’s Leviathan: The Power of Mind over Matter (Cambridge University Press, 1992).

“We all have strength enough to endure the troubles of others.” — La Rochefoucauld 

“We often pride ourselves on even the most criminal passions, but envy is a timid and shamefaced passion we never dare acknowledge.” — La Rochefoucauld 

“Our promises are made in proportion to our hopes, but kept in proportion to our fears.” — La Rochefoucauld

Sidebar on the last maxim: In the case of Anglo-American contract law, however, it seems promises are an exception to rule of the second clause, that is, insofar as promises are not “kept in proportion to our fears,” at least when that fear is in reference to considering or calculating the consequences for breach of contract (cf. the ‘law and economics’ idea of ‘efficient breach’), the fear in question in reference to the possible (legal) penalties in the wake of that breach (we won’t here touch upon the sanctions that might follow the violation of a social norm).* The remedies for breach of contract are not intentionally (or unintentionally) punitive, hence one reason Seana Shiffrin points out that the legal “doctrines of consideration, mitigation, and the ban on punitive damages [emphasis added] are in tension with the corresponding [moral] structure of promising.” Shiffrin does appreciates the fact that “because it [i.e., law] is a cooperative activity of mutual governance that takes institutional form, its moral values and principles may well be distinct from those comprising interpersonal morality.” Nonetheless, she proceeds to argue that
 
“If either moral agency must be accommodated from respect for agents’ interests in leading moral lives or a robust culture of promissory commitment is necessary for a flourishing political society, then we have a political interest in ensuring that we do not as a community invoke and recognize promises within our political institutions but then treat them or act on rationales inconsistent with their value. Even if our interest in invoking promises is not directly one of supporting or encouraging the culture of promising, we may still have a duty, taking something of the form of a constraint, not to act or reason in ways that are in tension with the maintenance of a moral culture of promising.”

Shiffrin’s overarching motivating concern revolves on the possibility of articulating a (presumably prescriptive) theory of contract “that would treat the conditions of moral agency and the culture of promising in a more complementary way,” in other words, how might we “conceive of a distinctively legal normative conception of contract that would sit more comfortably with our moral agency.” 

* In this discussion I am not assuming (nor need we assume) that contracts are best (descriptively) explained by the “promised-based or autonomy argument” or contract theory (of obligation) made (in)famous by Charles Fried’s Contract as Promise (1981) (it seems clear by now that no one principle—promise, consent, efficiency, what have you—can suffice to explain the praxis of contract law). And I agree with Brian Bix that the “ideal of freedom of contract (and its corollary, freedom from contract) is not always fully realized,” indeed, “the deviations from the ideal are pervasive, especially in consumer transactions.

References & Further Reading:
  • Ayres, Ian. And Gregory Klass. Insincere Promises: The Law of Misrepresented Intent. Yale University Press, 2005.
  • Benson, Peter, ed. The Theory of Contract Law. Cambridge University Press, 2001.
  • Bix, Brian. Contract Law: Rules, Theory, and Context. Cambridge University Press, 2012.
  • Cunningham, Lawrence A. Contracts in the Real World: Stories of Popular Contracts and Why They Matter. Cambridge University Press, 2012.
  • Fuller, Lon L. The Morality of Law. Yale University Press, revised ed., 1969.
  • Habib, Allen, “Promises,” The Stanford Encyclopedia of Philosophy (Spring 2014 Edition), Edward N. Zalta (ed.) https://plato.stanford.edu/archives/spr2014/entries/promises/
  • Hardin, Russell. Trust and Trustworthiness. Russell Sage Foundation, 2002.
  • Kreitner, Roy. Calculating Promises: The Emergence of Modern American Contract Doctrine. Stanford University Press, 2007.
  • Shiffrin, Seana Valentine. “The Divergence of Contract and Promise,” Harvard Law Review 120 (2007): 708-753. Available: https://harvardlawreview.org/wp-content/uploads/pdfs/shiffrin.pdf  
  • Shiffrin, Seana Valentine. “Are Contracts Promises?” in Andrei Marmor, ed. The Routledge Companion to the Philosophy of Law. Routledge, 2012. Available (unedited version): http://www.law.ucla.edu/~/media/Assets/Law%20and%20Philosophy/Documents/Shiffrin-Contracts-Promises.ashx
  • Zaibert, Leo. “Intentions, Promises, and Obligations,” in Barry Smith, ed., John Searle. Cambridge University Press, 2003.

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