Tuesday, April 3, 2007

Roy Kreitner's Calculating Promises

Posted by Jeff Lipshaw

Roy Kreitner (Tel Aviv, right) has just published a new book, Calculating Promises, published by StanfordKreitner University Press.  The sub-title "The Emergence of Modern American Contract Doctrine" probably does not do justice to its original and very interesting thesis.  Here's a portion of the blurb:

Breaking with conventional wisdom, the author argues that our current understanding of contract is not the outgrowth of gradual refinements of a centuries-old idea. Rather, contract as we now know it was shaped by a revolution in private law undertaken toward the end of the nineteenth century, when legal scholars established calculating promisors as the centerpiece of their notion of contract.

The author maintains that the revolution in contract thinking is best understood in a frame of reference wider than the rules governing the formation and enforcement of contracts. That frame of reference is a cultural negotiation over the nature of the individual subject and the role of the individual in a society undergoing transformation.

More precisely, Professor Kreitner insists (persuasively) that we cannot really grasp the development of contract doctrine over the last hundred years or so without placing it in what I interpret as a sociological context, the modern individuation of the human.  The book points out the error of thinking about the movement from tribes and communities to modern organization as a kind of foreordained and unidirectional teleology.  If modern management theory - teams, cells, non-command and control - is a reaction to precisely the Sloan-like or Ford-like scientific management the book describes, what can we say about the present "scientific" conception of law that developed at the same time as the scientific conception of management, and which pervades current thinking (albeit perhaps not Langdellian)?  Let me suggest that even the corporation is not as calculating as if often portrayed in legal academic writing.  While the corporation is a place where scientific decisions could be made (probably more so than a family, but recall Cheaper by the Dozen), it doesn't mean that within the corporation a certain tribal or group culture doesn't exist.  Computers still don't make judgments within corporations; people do.  And the battle between data and intuition as the basis for the decision making rages in a very complex way.

The book arrives as I have been honing my essay on the futility of trying to impute either morality or economics as the sole axiomatic justification for the institution of contract law.  Professor Kreitner's thesis involves a societal individuation; mine, I think, comes at it in reverse as an individual objectification.  Both pieces are relatively disinterested in the normative evaluation of particular doctrinal rules; both instead are trying to draw a line of demarcation between all the other relationships we might have, and those that happen to be regulated by the law of contract.

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Comments

For the "but recall" cite, I am guessing you mean the original and old book Cheaper by the Dozen, where the family is a well-oiled machine overseen by the efficiency engineer father (a nice true story), not the hijinks-madhouse movie versions. Then again, the house in Sleeping With the Enemy also ran like a machine.

Posted by: Alan Childress | Apr 3, 2007 6:37:58 AM

The portion of the blurb reminds me of the following: 'Law is the regulatory mechanism generalised in an economy based on commodity production. The legal form is that form which regulates the legal relationship: dispute is central, because without dispute there would be no need of regulation. The legal subject is part of this legal relationship, as '[e]very legal relation is a relation between subjects. The subject is the atom of legal theory, its simplest, irreducible element.' [I've left out all the references to Evgeny Pashukanis, Marx, and others]

The commodity is, in Marx's words, "a very strange thing," an object brought to market to be exchanged, through the medium of money, for another usually very different thing. For these two things to enter into relation with each other, they must be brought to the market by their owners, who must recognise each other as such. Each human agent must recognise all others in the market to their commodities--a relation of exclusive ownership--and is do doing create a relation of abstracted, isolated egoism between each other. The juridical relation exists in the interface between humans' relations with their commodities and comcomitant relations with each other. This, Pashukanis takes from Marx: "Commodities cannot themselves go to market and perform exhanges in their own right. We must, therefore, have recourse to their guardians, who are the possessors of commodities. Commodities are things, and therefore lack the power to resist man.... In order that these objects may enter into relation with each other as commodities, their guardians must place themselves in relation to one another as a person whose will resides in those objects, and must behave in such a way that each does not appropriate the commodity of the other, and alienate his own, except to an act which both parties consent. The guardians must therefore recognize each other as owners of private property. This juridical relation, whose form is the contract, whether as part of a developed legal system or not, is a relation between two wills which mirrors the economic relation. The content of this juridical relation...is itself determined by the economic relation." [....] The legal subject is defined by virtue of possessing various abstract rights--"[t]he isolated, abstract, impersonal legal subject...cannot be identified with the specific attributes or roles of any particular social actor." This formal equality of distinct and different individuals is in exact homology with the equalisation of qualitatively different commodities in commodity exhange, throught the medium of abstract labour (the stuff of value). Thus with the generalising of legal relations, '[l]egal fetishism complements commodity fetishism."

Whereas under feudalism "every right was a privilege," every right was identified with a specific social position vis-a-vis the other, capitalist exchange is characterised by the generalisation of "Freedom, Equality, Property and Bentham." The historically progressive generalisation of "equal rights" is the generalisation of the abstract legal subject, "an abstract owner of commodities raised to the heavens." This is why contract is so vital to Pashukanis's theory of law. Abstract and equal subjects, the atoms of the legal relationship, cannot relate to each other according to principles of "traditional" privilege, but do so by means of contract, which is the formalisation of mutual recognition of equal subjects. [....] Without a contract, Pashukanis writes, "the concepts of subject and of will only exist, in the legal sense, as lifeless abstractions. These concepts first come to life in the contract." [....] While commodity exchange under capitalism is different from simple commodity exchange, in that it is based on and reproductive of exploitative class relations of production, it is also true that as commodity exchange it is also a free and equal exchange of equivalents, borne by abstract, isolated social agents. Relations of production must be analysed to make sense of the particular class relations under capitalism, but the legal relations remain an expression of the relations of circulation. This is precisely why formal freedom and substantive unfreedom coexist under capitalism.' [later, of course, the legal recognition of unions and corporations complicates matters] From China Mieville's Between Equal Rights: A Marxist Theory of International Law (Chicago: Haymarket Books, 2006).

Posted by: Patrick S. O'Donnell | Apr 3, 2007 10:40:00 AM

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