Duties At Law and Elsewhere at Law & Society Blog

Duties At Law and Elsewhere

Published by Manfred Gabriel August 19th, 2005 in Jurisprudence

Following one of Larry Solum’s links, I came across an interesting article, by Jeffrey M. Lipshaw entitled Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise. The article undertakes to draw an arc from contract theory to Kelsen, Kant, and Dworkin. Lipshaw asks this question: Is there, in some circumstances, a moral duty not to enforce a contractual promise one has received? After giving a couple of hypotheticals in which one might argue that one party would in fairness not deserve to receive the benefit of the promises contained in a contract, Lipshaw distinguishes between the moral choice of making a promise on the one hand, and the choice to enforce a promise on the other. Dismissing law as incapable as a matter of logic or practicality to establish a (moral) duty not to enforce a (legal) promise (more on that later), Lipshaw suggests that

… the difference between the law of consensual relationships (i.e., contracts) and the morality of those relationships is one of compulsion and freedom. In the former we find ourselves being compelled by, or compliant with, a rule some distance removed from the basic norm; in the latter we find ourselves in touch, constantly and sometimes in the face of more visceral obligatory rules, with a far deeper and more fundamental (transcendental) sense of fairness.

(Just as an aside, I don’t think measuring the “distance … from the basic norm” would be a useful exercise in Kelsen’s pure theory of law.)

Starting with Kelsen’s separation of the legal ought from the moral ought, Lipshaw then characterizes the law as necessarily external and marked by the absence of freedom: “Positive law, whether by compulsion or compliance, is external to us, and hence is not free.” Even more, being “compliant with the rules of contract when the “ought” of morality conflicts with the “ought” of the law is something less than free, and has to do with the role of our will versus our material inclinations.”

The question is, of course, the difference between action according to duty and action from duty. For Kant, the basis of freedom is action not according to duty, but action from duty. Insight into our moral obligation, and action from that insight, transforms us from bodies tossed about by the law of causation into free moral actors. “Compliance with” contractual duties (to use Lipshaw’s term) is a moral act if and when it is a free act, that is, when it flows from the insight into the duty to obey the law (as expressed by a universality principle). To my mind this is the keystone of Kant’s theory, the central concept by which he explains freedom in a causally-determined world. Surprisingly, Lipshaw rejects Kant on this point: “All rules imposed on us, even those to which we have agreed voluntarily to be bound, once we have accepted their binding nature, bespeak a world in which we are compliant, and thus something less than free.” Lipshaw has heard this critique before; I just don’t think that an eclectic approach to Kant makes sense in this area.

I will take this “less than free” as the starting point for a few remarks on contract law, and leave to the side Lipshaw’s further philosophical inquiry (with whom I whole-heartedly agree that Dworkin has nothing useful to add). Consider the freedom of contract: The individual is free to contract (to make and receive promises), and in exchange for giving up self-help and the use of force, the state promises to enforce private contracts. If the state refused to enforce contractual promises, the result would be a loss of freedom. I couldn’t, for example, say to a bank: Give me the money to buy a house now, I promise to pay you back later. Without the ability to bind my future self to the consequences of the decision I take today, I lose freedom. Freedom and responsibility go hand in hand in that respect. Lipshaw draws too strong a distinction between the act of promising and the decision to enforce a promise. In a moral sense, I may in fact insist on fulfilling my contractual obligation, even though the recipient of my promises is willing to not enforce my promise against me. “Promises will be impossible but that they should be kept,” I could say and insist on paying my legal debt (Kant would approve, Hegel would snicker).

In other ways also, Lipshaw’s concept of contracts strikes me as under-theorized. He does not discuss, for example, that contracts are simply the allocation of risk and uncertainty, which is the standard move to counter arguments that a promise, which no longer seems as “fair” as it did when it was made, should be enforced. This scant attention to the legal side of things is unfortunate, because Lipshaw seems to miss a good deal of subtlety inherent in contract law. Lipshaw has

… puzzled over the strange route contract law has taken in trying to distinguish between those promises to be enforced by the state, and those who[se] only force is moral. From the tight formalism of the writs of covenant and debt, to assumpsit, to more modern attempts to find a coherent distinction between contract and promise or reliance, all theories have a consistent approach: the focus on the rights of the promisee or the duties of the promisor.

I disagree on several levels. First covenant, debt, and assumpsit did not distinguish moral from state-enforced promises, but only promises enforced in royal courts from promises enforced in other courts (such a manor courts or mayoral courts). Second, the false case-book dichotomy between “moral” and legal promises gets Lipshaw off on the wrong foot because “not enforceable in a court of [common] law” is certainly not the definition of “moral” that Kant or Kelsen would use.

Finally: Law, unlike morality, looks at duties in a relationship and not just in the individual. Consider that law holds defenses that may be raised against the action to enforce a promise. The statute of limitation is a defense that the promisor may raise, but can’t it also be regarded as a legal limitation on the promissee’s right to enforce the promise? It is more subtle than a duty not to enforce a promise, because as a defense it leaves the promissor the option to perform or to raise the statute-of-limitation defense. Consider equity: It can be regarded as a “legal” mechanism to curb the enforcement of binding promises, and it imposes duties on both sides: He who comes to equity must come with clean hands. Consider the also the “duty” to mitigate damages. It is not a duty in the sense that the other party can enforce it; but it is a duty against oneself in the sense that by failing to mitigate harm, you lose a claim to damages that would otherwise have existed. Then there are several contract doctrines that deal with misperceptions of the parties at the time of contracting. True, such doctrines carve out only a small area, but their existence refutes Lipshaw’s statement that “the law of contract never addresses [the issue that] as promise-makers we hope that promise-getters will understand and deal with us fairly when a promise rally should not be fulfilled.” If we look at other legal systems, there are even explicit and open-ended references to be found. The Swiss Civil Code, for example, contains the explicit rule that “every person in exercising his rights and performing his duties must act according to good faith.” (Sec. 2 Zivilgesetzbuch).