Date: Sun, 5 Jan 1997 09:11:56 -0700
From: Hans Ehrbar <ehrbar-AT-marx.econ.utah.edu>
Subject: BHA: Consideration



Here are some thoughts (from someone who is not familiar with the
legal literature) about Howard's paper about consideration posted to
the archives.

The basic idea is the following: in general, someone who makes a
promise is not legally bound to keep this promise.  But there are
certain circumstances under which a promise becomes a legally binding
contract.  These circumstances are called "consideration".  If
something is solicited and given in exchange, then then promise is no
longer a revocable one-sided act, but then the promisor is legally
obligated to carry through his promise.  The purpose of Howard's paper
is to build a theoretical framework which allows to define
those circumstances under which a promise becomes legally binding.

This is an excellent field for the application of CR.  The catalog of
circumstances which make a promise legally binding is a catalog of
empirical manifestations of a social structure which itself is
invisible.  A retroductive argument is needed to identify this social
structure.  Only after this social structure has been made "visible"
by a scientific act can a judge make a determination whether a certain
set of circumstances represents consideration.


Now I suspect Howard is saying the following (and please, Howard,
correct me if I am wrong, I hope to be wrong, I am playing the devil's
advocate here and I am certainly oversimplifying:) In a market economy
individuals are subjectively independent and self-interested, but
objectively interdependent.  Consideration is a ritual by which
individuals give up some of their autonomy in order to be able to
engage with each other, which they need to do since life is a social
affair.

Here is an attempt to restate this in terms of absences.  By
consideration, the individuals raise themselves above a hypothetical
natural state in which everyone lies and cheats and nobody honors his
or her committments because of self-interest.

My criticism of this is: this hypothetical natural state is not
natural but it is an outgrowth of commodity relations of production,
and it is enforced by the same state apparatus which enforces
consideration.  The "natural" state which I have in the back of my
mind is rather the following: Along with their inderpendence, people
living in society have joint interests.  In the pursuit of these
interests, they communicate with each other and commit to each other.
If someone does not keep his or her commitment, the collective of
which he or she is a part will deal with it by addressing the reasons
why this person does not keep the commitment.  Violence is not
necessary.


In a market economy, things are done differently.  Instead of having
joint goals, individuals help each other only in order to be able to
use each other.  There is a wonderful passage in Grundrisse, MECW 28,
p. 175 or Vintage edition p. 243.  This is the philosophy behind the
exchange of goods.  It is not only indirect and alienating but it also
fails in situations in which the things which are exchanged are not
present at the same time: because narrow individual self-interest,
which is such a powerful motivator, is also quite unstable.  It easily
changes over time (due to its narrowness).  Now a market society does
not address the reasons why this self-interest changes but holds the
individual to his or her commitment.  People cannot relate to each
other as persons but must pretend to be things.  The contract which
the person enters becomes more important than the person itself.  This
is why coercion is needed.

My own (at this point tentative) view about consideration is
therefore: it is one of the mechanisms through which capitalist
society through the state forces individuals to relate to each other
as isolated self-intersted commodity exchangers.  I.e., I think that
in order to understand consideration one has to start with the
assumption that society has a very specific purpose which it forces on
the individuals: namely, society is interested in commodities (perhaps
more specifically in the accumulation of capital) and it forces the
individuals to act as the character masks of the commodities.  I think
Howard agrees with me that consideration should first be seen as a
modality in the commodity exchange (a discussion of consideration
would fit into Section 3b of Chapter 3 of *Capital*, when Marx
discusses the function of money as a means of payment), which then
branches out from commodity exchange proper to embrace also other
promises.  Whether or not this is correct could be verified by looking
at the history of consideration.

Now it is possible that Howard is saying something very similar,
and I just did not recognize it.  Howard's paper is quite
long and involved, and I benefited very much from reading it.
Please consider this as an attempt to engage in a constructive
discussion by perhaps overstating our differences, not as an attack.


I am attaching here Howard's original announcement when he
posted the paper to the archives:

> Date: Sun, 10 Nov 1996 15:31:43 -0800 (PST)
> From: LH Engelskirchen <lhengels-AT-igc.apc.org>
> Subject: BHA: article posted to archive
> 
>  
>  
> I was finally able to get the draft I referred to a couple of weeks
> ago to Hans E and it is now posted to the bhaskar archives and can
> be accessed there.  This is not, incidentally, the paper I will be
> giving at the RM conference -- that one is still a "work in
> progress" as the saying goes.  Anyway this draft comes in two
> parts, "contract-beg" and "contract-all."
>  
>  
>  
> CONTRACT-BEG
>      The first part is called "contract-beg" for the beginning of
> the article and includes an overview of critical realism.  This I
> thought necessary to orient readers to the methodology I claimed to
> be applying.  
>  
> I AM VERY MUCH INTERESTED IN ANY COMMENTS, CRITICISMS OR
> SUGGESTIONS FOR IMPROVEMENTS MEMBERS OF THE LIST WOULD HAVE OF THIS
> OVERVIEW.  
>  
> Included in the same part is a synopsis of a retroductive argument
> for the legal doctrine of "consideration."  "Consideration" is a
> technical requirement necessary in Anglo-American law in order for
> a promise to be enforceable.  It is commonly referred to as
> 'something given in exchange.'  Thus if I promise to sell you a car
> and you promise to buy it from me for $2000, my promise of a car is
> consideration for your promise of $2000 and renders it binding;
> equivalently, your promise of $2000 is consideration for my return
> promise and renders the promise to deliver the car binding.  If,
> without promising, I simply deliver the car in exchange for your
> promise to pay me $2000, then the car is called consideration.  In
> the article I claim that consideration is a commitment given by the
> recipient of a promise that he or she will give up the formal
> autonomy which characterizes each individual's position in a
> commodity exchange society; the commitment is equally a commitment
> to embrace social interconnection.  Consideration, therefore, is "a
> form for the relinquishment of autonomy."
>  
> The synopsis merely summarizes the way in which an analysis of
> consideration would have to be situated in relation to the social
> and economic relations presupposed by it.  The argument described
> I take to be substantively transcendental, showing both the
> necessity of what is presupposed by the legal relation to which
> consideration refers and, reciprocally, the necessity of the legal
> relation to those social relations presupposed.  
>  
>  
> CONTRACT-ALL
>      For any of you interested in pursuing the argument, the second
> part, "contract-all" includes everything in the first part, that
> is, everything in "contract-beg."  In "contract-all" the analysis
> is carried out and I attempt to identify a generative mechanism
> explaining the judicial decision to enforce a promise.   Promising,
> I try to show, is a "positioned practice" (PON) facilitating
> exchange.  The analysis then turns on a distinction between bargain
> and exchange rooted in the irreducibility of meaning to the
> behavior and also reflecting the notion that reasons are causes. 
> I conclude that consideration plays an essential role in a cycle of
> social reproduction necessary to any market economy (though it
> takes different forms on e.g. the Continent, in Latin America,
> etc).  Thus my hope is to have established the specificity of a
> particular social structure and laid the basis for a real
> definition of it.  
>  
> If you have the time to work through it, I would definitely welcome
> your bhaskarian critique.
>  
>  
> DOCUMENT RETRIEVAL
>      Hans E explains that access to either of these documents may
> be had as follows:
>  
> Your paper can be retrieved by sending the following message to
>  
> majordomo-AT-jefferson.village.Virginia.EDU
>  
>  
> get bhaskar contract-beg
>  
> or 
>  
> get bhaskar contract-all
>  
>  
> To retrieve the archives of the bhaskar list by ftp, you have to
>  
>    ftp jefferson.village.virginia.EDU
>  
> log in as user "anonymous", and then
>  
>    cd pub/pubs/listservs/spoons/bhaskar.archive
>  
>  
>  
> The www-URL of the spoon collective is
>  
>    http://jefferson.village.virginia.EDU/~spoons
>  
>  
> COPYRIGHT
>      Please respect the copyright notice given at the bottom of the
> table of contents page, the first page following the title page. 
> Of course I would be delighted should anyone wish to use this work,
> but I want to give permission and explain the appropriate form of
> citation.   Contact me.  
>  
>  
> howard
>  
>  
> Howard Engelskirchen
> Western State University College of Law
> 1111 N. State College Blvd
> Fullerton, CA 92631
> (714) 738-1000 x2505
> lhengels-AT-igc.apc.org


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