Cultivating the virtue of contract
What role does contract law play in the formation and maintenance of flourishing human societies?
Imagine a legal case in medieval or even nineteenth century Europe: a man promises to marry a maiden, but only if she grants him one favour, which she does. After quite a ‘favourable foray’, he retracts the offer and scuttles away, leaving her with grave social and biological consequences. She pursues him in court for breach of promise and she wins. He now must: (1) marry her or (2) provide a suitable substitute or (3) face legal penalties. This case connects the social and legal aspects of promise-keeping to contract law in a tangible way (and is not far from famous historical cases).
This case looks quaint to us in part because it legislates morality. Morality is often seen as a wholly private matter. But general enforcement of promises in law also touches on private matters, and enforcement of contracts always carries a moral connotation. Ever since canon law had its say in the high middle ages, modern civil law declares a mere promise can be binding as long as there is (1) a serious will behind it that has been declared; or (2) excusable reliance on the declaration on the part of the addressee.
Not only is morality present in specific enforcements but also in contract law per se. The presence of this body of law reinforces the belief that keeping one’s word is generally better than breaking it, and that breaking one’s word should not be done without censure – and that both of these are fundamental to human flourishing in a commonwealth.
But how fundamental is promise-keeping to human society? Formalized promise-keeping as contract has always been with us. It is an ancient phenomenon and universal; we know of no society without some form of it. The Bible begins with contract and the ancient Romans promise things to the gods in a form (votum) that they later seem to adapt to bind one another legally (stipulatio). Some things have changed, but often in the direction of more possibilities for contracting rather than fewer. Pre-Enlightenment people (and even social contract thinkers) saw themselves as bound by obligations that they did not create, e.g. family and state, and may never have consented to. The modern story is one of arbitrariness, not in the sense of ‘anything goes’ but in the sense of each person being a judge of his own goods, in many more areas of life than ever before. The virtue of promise-keeping would seem to be all the more necessary in a society in which more may be contracted.
There are, however, many possible ways to conceptualize and justify the role that law should play in supporting the virtue of promise-keeping. I shall suggest just one: if we take a lead from John Searle, we could say that promises ‘create’ social facts or realities, which henceforth exist objectively. These social facts can form ‘institutional facts’, which are a realm of obligation, existing through time as any institution does. Laws that enforce our words provide the space within which social facts may be transformed into institutional realities, in which bona fide dealings would be preferred over dishonest ones and become dispositions.
Humans are always the makers of these social and institutional facts, but they do not create them ex nihilo. Rather, these facts are in line with our nature (but not derived from it directly) as personal beings capable of responsibility. If this is so, then not accepting obligation is in some way not really being human. The implicit judgment on any society that does not create and sustain these realms of obligation is that it falls short of forming fully human beings. If law is here to serve human needs, it would seem imperative that it continue to involve itself in cultivating the virtue of promise-keeping through sensible contract law based on sound contract doctrine and good moral philosophy.
Sometimes culture follows law, but more often it is law that follows culture. Many modern men and women do not generally believe in the necessity of virtues for human flourishing. What may come if and when our laws begin to reflect our moral commitments?