Date: Sun, 10 Nov 1996 20:02:25 -0800 (PST) From: LH Engelskirchen <lhengels-AT-igc.apc.org> Subject: BHA: contracts These differences, I think, are not about adjustments at the margin, but maybe I'm wrong. In any case, we have a couple of hundred pages still in which to wrestle out the nuances. Here's a note I made a few days ago about the relevance of this discussion to law: These questions are posed not only for the theater arts, but also for questions of legislative intent, finding meaning in contracts, etc. In contracts we refer to the written document which parties sign, "the contract," as an "instrument." An instrument of what? Of the intention of the parties. If it is the intention of the parties which constitutes the "real" contract, then what is the ontological status of a contract? Where does this intention exist? The way I'm beginning to think through this is that the intention of the parties exists in its effects on the actions of individuals. For this reason we determine what the agreement is by looking to the text they have signed or words they have said, to their course of dealing in the carrying out of the contract, to their prior dealings, to customs of the trade (what similar words have made other people do in similar circumstances). And in the end, their common intention, as a social phenomenon, will be what their words and actions make a judge, acting, do in a dispute between them. Although, a judge, acting for other motives, could act for reasons other than their common intent, couldn't she. In that instance is their contract just what the judge says it is, or does it have some other reality? Suppose patriarchy causes a judge to construe a contract against a young woman in favor of a patriarch in a way that would cause us to shake our heads. Here one mechanism would have overridden another. What can we say about the reality of the other mechanism, of their coincidence of intention? It still operates, but we have to infer its effect, even though it does not immediately appear. This reminds me of doug's comment some time ago about the falling rate of profit operating even though actual profits might be rising because of the operation of some other mechanism. The trouble here is that in social life we deal with a multiplication of mechanisms. This is true in nature too, of course. But social mechanisms, we are told, exist only in their effects. But with the multiplication, we can only indirectly locate those effects. Howard --- from list bhaskar-AT-lists.village.virginia.edu ---
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