Liberalism and Freedom from the Promise Theory of Contract
| Published date | 01 July 2004 |
| Date | 01 July 2004 |
| DOI | http://doi.org/10.1111/j.1468-2230.2004.00506.x |
| Author | Curtis Bridgeman |
REVIEWARTICLE
Liberalism and Freedom from the
Promise Theory of Contract
Curtis Bridgeman
n
Dori Kimel,From Promise to Contract: Towards a Liberal Theory of Contract,
Oxford: Hart Publishing,20 03, ix þ149pp, hb d30.00, pb d15.00.
If law and economics scholars represent the ‘utilitarian wing’ of contracts scholar-
ship,
1
it is not entirely clear who represents the liberal wing. Liberalism is some-
what in vogue in contract scholarship now, with a wide variety of contract
theories claiming to be in some sense liberal. One of the better known liberal
theories of contract is the promise theory, most famously articulated by Charles
Fried.
2
Promise theorists seek to justify and/or explain contract theory by appeal
to the moral obligation to keep one’s promises. In a recent book Dori Kimel takes
a close lookat the practiceof promising,and compares and contrasts it to the prac-
tice of contracting.
3
By exploring the distinct bene¢ts of each practice he looks to
work, as his subtitle announces, towards his own‘liberal theory of contract.’
Kimel’s well written book can be brie£y summarised as follows. Most of the
book is an inquiry into the relationship between contract law and the practice of
promising. Kimel concludes, roughly, thatwhile both facilitate a form of‘reliance,
co-operation, or co-ordination between people,’promise has the added bene¢t of
enhancing personal relationships. It relies on trust, and the performance of pro-
mises openly signi¢es a recognition of and respect for personal obligations even
absent legal obligations. Contract law,on the other hand, allows people to rely on
the word of others even absent a personal relationship with them. In so doing it
enhances ‘personal detachment’ by allowing parties to remain at arm’s length.
Thus, argues Kimel, when Fried practically identi¢ed contracting with promis-
ing he failed to recognise important di¡erences between the two practices.
Kimel then draws on these di¡erences to comment on the relationship of lib-
eralism to contract. As he points out, liberalism is often identi¢ed with a certain
‘rigid’ conception of freedom of contract, in which parties are to be free to order
their a¡airs as they wish, and government intrusion is tobe minimal (i.e.contracts
are to be enforced according to theparties’wishes as expressed at the time of con-
tracting). The justi¢cation for the rigid conception is normally some more orless
thoroughly articulated reference to individual auto nomy.
n
Assistant Professor, Florida State University College of Law. Special thanks to Dennis Patterson,
RobertRasmussen, and the (anonymous) referee for comments on an earlier draft.
1 I borrow this phrase from Randy Barnett,‘The Sound of Silence: Default Rules and Contractual
Consent,’ (1992)78 Va. L.Rev.821,829 n. 30.
2 C. Fried, Contract as Promise(Cambridge: Harvard University Press,1981).
3 D. Kimel, From Promise to Contract:Towards a LiberalTheory of Contract (Oxford: Hart Publishing,
2003).
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(4) MLR 684^699
Partof Kimel’s project is to scrutinise the link between liberalism andthe rigid
conception of freedom of contract. A student of Joseph Raz, Kimel endorses a
perfectionist, communitarian versionof liberalism,according to which liberalism
amounts tothe pursuit of certain liberal values, rather than an unyieldingdefence
of individual autonomy. Autonomy is still to be valued, but ‘only when exercised
in pursuit of the good,’ including‘valuable activities and relationships.’
4
The prac-
tice of promising is valuablebecause of its ‘relationship-enhancing function’.‘The
ability freely to create, develop, and mould relationships with others is an indis-
pensable ingredient of personal autonomy.’
5
Contract, on the other hand, relies on
personal detachment, which‘only has a distinct value’ as an alternative todepend-
ing on personal relationships.
6
To be sure,in some cases that optionwill be invalu-
able, especially if one cannot rely on personal relationships ^ say, because of one’s
minority status.
7
But in general, Kimel argues,it is the practice of promising that
enhances liberal values, while contract does not, and may even inhibit those
values. The conclusion is that far from requiring the rigid conception of freedom
of contract, liberalism may instead require freedom from co ntract ^ i.e., the free-
dom to organise our a¡airs according to personal, non-legal bonds unless we spe-
ci¢cally express an intent to be legally bound.
8
Like most insightful works of scholarship ^ and there is no doubt that Kimel’s
work makes an extremely valuable contribution to the literature of contract ^
these arguments are not uncontroversial. Forexample, Kimel probably overstates
the di¡erences between the bene¢ts of promising versus contracting. It is likely
that contracting will enhance personal relationships as much as it will detach-
ment, especial ly since it provides an opportunity for people to develop trust
where there may have been no basis for trust before. Also, it is quite odd to have
such a thorough discuss ion of the dis tinction between promi sing and contract
without discussing the doctri ne of consideration. Although the i mportance of
bargained-for consideration in modern contract law has beencalled into question,
it still marks the most immediately obvious dividing line in Anglo-American
contract law between those promises that are legally enforceable as contracts and
those that are not. Kimel’s project is for the mos tpa rt not a descriptive project, but
the absence of any discussion of consideration is glaring nonetheless.
Still, rather than focus on such speci¢c quibbles with Kimel’s argument, I
would prefer to look more broadly at his methodological commitments. One of
the most vexing questions in private law theory is its relationshipto broader poli-
tical theory. Kimel touches on a particularly di⁄cult problem: should a commit-
ment to liberalism have any implications forone’s view of private law? Or, to put
the point another way, whatdoes it mean to say that a particular theory is a ‘liberal
theoryof contract?’The question is not an unimportant one. If we take liberalism
seriouslyat the broader political level, then we should carefully examine its impli-
cations for the waygovernment polices private transactions.
4ibid 131.
5ibid 134 .
6ibid.
7ibid 142 .
8ibid 135^142. RandyBarnett distingui shes his consent theory of contractfrom promise theories in
the same way. See R. Barnett,‘The ConsentTheory of Contract,’(1986)86 Col. L. Rev. 269.
Curtis Bridgeman
685rThe Modern LawReview Limited 2004
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