File spoon-archives/bhaskar.archive/bhaskar_1996/96-12-14.144, message 37


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 ---



   

Driftline Main Page

 

Display software: ArchTracker © Malgosia Askanas, 2000-2005