[ Pobierz całość w formacie PDF ]
.SeeSamuel Williston, Freedom of Contract, 6 Cornell L.Q.365, 365 72 (1921). 90 g i f t s a n d p r o m i s e s r e v i s i t e dframework is central in supporting the image of the market as the realm offree individual action.14Judicial RoleThe second area of convergence of the distinctions created by classicalcontract theory, closely related to the reimagination of the market, is theconception of the judicial role.It is not my intention to advance any sub-stantiated theory of the judicial role, or even of the connection between clas-sical contract doctrine and the judicial role.15 I have a much more modestgoal at this stage, which is to point out an obvious but constantly forgottenpretension of the classical contract framework.To the extent that classicalscholars succeeded in maintaining the three distinctions presented above,16they seemed to be making a case for the idea that judges merely facilitated,and did not regulate; that they enforced obligations freely undertaken bythe parties, and did not impose obligations whose sources lay elsewhere.This at once contributes to and is informed by the vision of the market as a free realm, where private lawmakers can design their own duties.17 The14.The flip side of the articulation of the market sphere is the bounding off of a family sphere, whererelations are hierarchical and not based on consent, but which is characterized by values such as love andtrust.For a critique of the effects of such a division into spheres, see Frances E.Olsen, The Family andthe Market: A Study of Ideology and Legal Reform, 96 Harv.L.Rev.1497 (1983).Support for the divi-sion into spheres as a safeguard against the commodification of important values is expressed by Eisen-berg, who seems to argue that if the alienated world of legal enforcement is allowed to enter the bastionof trust (the family), the values that characterize it will be in jeopardy, and may not survive.Eisen-berg, World of Contract, 847 49.Critics of the position rightly maintain that rather than preservingthose values by fencing them off in some purified realm, it makes sense to advocate their adoption andstrengthening wherever they happen to be appropriate, including at times in the business world.SeeRobert W.Gordon, Unfreezing Legal Reality: Critical Approaches to Law, 15 Fla.St.U.L.Rev.194,214 17 (1987); Carol M.Rose, Giving Some Back: A Reprise, 44 Fla.L.Rev.365, 373 75 (1992); CarolM.Rose, Giving, Trading, Thieving, and Trusting: How and Why Gifts Become Exchanges, and (MoreImportantly) Vice Versa, 44 Fla.L.Rev.295, 313 17 (1992).15.Duncan Kennedy has revisited this issue repeatedly over the last quarter-century.For a recent de-tailed effort, see Duncan Kennedy, A Critique of Adjudication: Fin de Siècle 82 92, 202 12 (1997).16.Favoring contract over status (or customary relationship), contractual economy over an economy ofgift exchange, and questions of formation over those of content of obligation17.These phrases are evocative of the private ordering paradigm, and while they resonate as if they referto the will theory of contract, they are defensible without resort to it as well.One could easily imaginesuch support from libertarians, economists, or even liberals who had abandoned the will theory, includ-ing classical theorists like Williston or later theorists like Fuller.For an explanation of the connectionbetween will theory and the various phases in American contract theory, see Duncan Kennedy, Fromthe Will Theory to the Principle of Private Autonomy: Lon Fuller s Consideration and Form, 100Colum.L.Rev.94, 115 17, 126 35 (2000). s p e c u l a t i n g o n g i f t s a n d p r o m i s e s 91conception of the judicial passivity that flows from the distinctions is nota logical necessity, but the rhetorical connection is strong.18 Again, none ofthe particular rules of consideration need survive to leave intact the rhetori-cal image of the judge as facilitator: it is the framework that performs thelabor of making this image plausible.The Calculating Individual SubjectFinally, the third area of convergence is the creation of an ideal image ofthe contracting individual.The combination of distinctions outlined aboveis part of a rejection of the complexity of relational patterns, in which ob-ligations were often undertaken implicitly without direct and explicit bar-gaining over the value of reciprocal obligations.Reciprocity was part of thepattern, but it was not necessarily strictly defined or bargained over.Peoplecontinued, and continue now, to undertake such obligations, and judgeshave never withdrawn completely from enforcing and policing such rela-tionships.Classical theorists, however, attempted to purge such complexityfrom the idealized vision of contracting.Gratuitous undertakings are thekey example.Classical scholars could not deny the existence of gratuitousundertakings, usually assumed in the course of commercial dealings.Theydid, however, define them out of contract law because of the difficulties inascertaining the precise elements of exchange that they entailed.Thus, partof the classical project was the advancement of an image of the economyin which participants made strictly rational choices based on bargained-forexchange.Only such transactions as fit the ideal image would be accordedthe privilege of legal enforcement.19 The denial of gratuitous undertakingsis thus analogically equivalent to a denial of the image of the economy of18
[ Pobierz całość w formacie PDF ]