Date: Sat, 11 Jan 1997 02:17:01 -0800 (PST) From: LH Engelskirchen <lhengels-AT-igc.apc.org> Subject: BHA: excerpt pages <Secure in the knowledge that anyone who wants to *ignore* this message can, I'm posting a half-dozen pages from the article Hans has critiqued. These explain the concept of autonomy I use, summarize the link between autonomy, exchange, promising and consideration, reflect the style, and contain, in the penultimate paragraph, the crop failure caused by drought example>: A retroductive argument concerning consideration would ask what the world must be like in order for the doctrine of consideration to be possible. In synopsis, an answer might run as follows: the world presupposed must be a world of promises, for consideration emerges as a means to demarcate enforceable from unenforceable promises. But promises have not always played a significant role in legal life[FN 10]. Roman Law, for example, never developed a general basis for enforcing the reciprocal exchange of promises[FN 11]. Some promises when exchanged could be enforced, but there was no general social rule recognizing an obligation to enforce mutual promises. This phenomenon emerged only in market economies developed to the point where the general circulation of goods and services had become a basis for production. We may suppose promises to exist in all forms of human existence and interchange,[FN 12] but the promises presupposed by consideration are of a historically specific rather than general character. They are promises formed and shaped by the world of private exchange. A vassal promises fidelity to a lord, but this is not a promise which gives rise to Restatement (Second) of Contracts, s71.[FN 13] The universe of promises with which we are concerned includes only those which presuppose private exchange. Private exchange itself presupposes people distributed in identifiably specific kinds of social relations. People in all forms of social life give goods back and forth, but this need not involve private exchange in the sense of a reciprocal transfer of goods or services between persons formally independent of one another[FN 14]. Exchange within status or kinship societies remains subordinate to kin and status relationships.[FN 15] It is when the members of a society function as formally independent units for the production and distribution of wealth that private exchange emerges. The family farm of the early U.S. is an archetype of such independence -- a self-sufficient household unit producing the bulk of its own means of survival, but tied to the market for certain essentials. Yet the paradigm extends as well to the working family today -- such a family is completely dependent on the market; it finds employment and all goods and services of which it has need in the market and its members enter market relations as autonomous economic units. Market economies emerge where autonomous individuals or groups exchange specialized production they do not need for goods and services they do need. Where produced wealth is held autonomously and exchange between private possessors becomes a regular interaction, a tendency for the production of each to become specialized is accentuated. If the process is repeated under circumstances favorable to its development, a more or less fully integrated system characterized by a social division of labor develops. Each individual or separate economic unit becomes dependent upon exchange for things they have come to need and exploits the skills and resources they have as a means to obtain the things they need. In this fashion the system generates a tendency for its own reproduction,[FN16] and the intensity of this tendency is heightened the more deeply entrenched private exchange becomes. The more people in their needs have become dependent on the perpetuation of exchange, the more the social division of labor develops. Reciprocally, with every advance in the social division of labor, the force for its reproduction becomes stronger and more consolidated. Thus these two features characterize a private exchange economy: the private autonomy of person and property and an interdependence generated by the social division of labor. I will refer to this structure of social relationships as a relationship of interdependent autonomy. This is the social foundation. From here we can reverse the path of our retracing. If there are to be both private autonomy and the social division of labor, then there must be private exchange. Private exchange makes possible the reproduction of the one and the other and the one with the other. I teach and offer my services as a teacher and am paid in return with a token representing a command on anything any other person or persons has produced. I'm able to live without the skills to produce food, shelter or clothing. A municipal bus driver develops skill in providing transportation services. The person who farms devotes herself to farming. In each case specialized skills exercised autonomously generate a product exchanged for goods and services capable of meeting some portion of the totality of a person's needs. In this way private autonomy and the specialization of activity persist and are socially reproduced. Private exchange gives rise necessarily to promising. With promises goods can be delivered before payment or payment can be made before goods are supplied. The exchange of products is facilitated by arranging for exchange before the items contracted for are even produced. A producer can devote more time to production and make that time more efficient if she is sure of market outlet. As it develops, therefore, private exchange generates a need for promising and the institution of promising tends to be transformed accordingly. But in the context of private exchange, promising presupposes more. While promising involves cooperative activity of persons over time, since each person serves his or her own interest, each looks, in the transaction of exchange, to self-interest. Self-interest, however, changes.[FN 17] Drought causes a crop to fail and makes performance of a contract to deliver grain impossible. If a person's promises are to be performed or the harm caused by nonperformance redressed, the promisor will sooner or later have to be compelled to comply. Along with the production and exchange of goods and services, we need to consider institutions of coercive compliance. In other words, a developed system of private exchange presupposes a developed system of law. Private exchange in and of itself is not enough to reproduce a system characterized by private ownership and the social division of labor: the exercise of social coercion is also necessary if reproduction of social relations in this form is to be assured. The forms for the exercise of coercion are driven by the need to reproduce the underlying structure of private ownership and the social division of labor.[FN 18] For example, before public coercion is used to enforce any particular exchange, it is essential for there to have been a surrender, whether by word or act, of that formal independence from others given by the social form of private autonomy.[FN 19] My decision to exchange or not is my own. I am driven implacably to exchange by the dependence of my needs upon it; this is a social fact, the consequence of a system of social relations I experience as given. Nonetheless, there must be choice in where and when and under what conditions I intersect with others if exchange is to reproduce private autonomy; there must be an expression of willingness to submit oneself to exchange. Other forms of social interconnection are possible obviously -- one person can make use of others without their consent as in various forms of bondage; alternatively, members of a group can transfer goods among themselves cooperatively -- but these are not social forms characteristic of a private exchange economy. Where promises are reciprocally given within the context of private exchange, each participant must bargain for the performance of another and obtain the consent of the other for whatever is received. It follows that in giving consent each manifests a willingness to give up his or her autonomy to that extent. This is a necessary implication of what a private exchange economy is. The prohibition of theft reflects the same dynamic: as a nonvolitional transfer of goods within the framework of private exchange, theft is inconsistent with the reproduction of private autonomy. Exchange requires a volitional relinquishment of autonomy appropriate to the reproduction of the social relations of private autonomy and the social division of labor. In Anglo-American law the legal doctrine which fulfills this function is consideration. FOOTNOTES [FN 10] See, e.g., Lon L. Fuller, The Role of Contract in the Ordering Processes of Society Generally, in The Principles of Social Order 169, 182 (Kenneth I. Winston, ed., 1981): "it is a commonplace of anthropology that explicit contractual arrangements are a rarity among primitive peoples." E. Allan Farnsworth, The Past of Promise: An Historical Introduction to Contract, 69 Colum. L. Rev. 576, 590 (1969), observes that in William Golding, Lord of the Flies, (1954) the island's schoolboys did not "bargain for the exchange of each other's promises," and he continues, "In this their experience mirrors that of man as a whole, who has shown little concern with such matters for most of his quarter of a million years existence." [FN 11] See, e.g., Alan Watson, The Law of the Ancient Romans 58 (1970) ("Roman law . . . has no general theory of contract but a number of different contracts."). See also, Farnsworth, id. at 590 ("But neither the innominate nor any of the other enforceable contracts resulted in the development of a general basis for the enforcement of promises that would include a promise made in exchange for another promise, where there had been no formalities and no return performance."). [FN 12] Cf. Samuel Stoljar, Promise, Expectation and Agreement, 47 Cambridge L.J. 193, 204 (1988): In this light, again, it is difficult to imagine a so-called "prepromising" (or non-promising) society. It is not that we could simply assume away the concept of promising; for if we did what would become of the related concepts of intending or expecting, how would it make sense to make future arrangements? Can there be a human society in which people do not know what it means to declare intention or recognize expectations, do not plan things to be done for or with another? Promises, it is therefore clear, are as basic in our conceptual equipment as are other notions that articulately orient us toward the future. So an often cited remark, attributed to Holmes, to the effect that promises were invented when the future was invented, contains a solid grain of truth, even if at first sight it seems little more than a literary exaggeration. [FN 13] Cf. P.S. Atiyah, Promises, Morals and the Law 92 (1981): "The idea that a person could alter his legal relationship with others merely by his free choice is a feature of advanced legal systems." [FN 14] See, Farnsworth, supra note 10, at 578-582 in "A World Without Bargain," (discussing the self-sufficiency of the Ammassalik of Greenland, sharing among the Zuni of New Mexico, and the potlatch of the Indians of the Pacific Northwest -- all societies which did not rely on exchange based on bargain; and see, Marcel Mauss, The Gift 5 (1990): In the economic and legal systems that have preceded our own, one hardly ever finds a simple exchange of goods, wealth, and products in transactions concluded by individuals. First, it is not individuals but collectivities that impose obligations of exchange and contract on each other. . . . Moreover, what they exchange is not solely property and wealth . . . . such exchanges are acts of politeness: banquets, rituals, military services, women, children, dances, festivals, and fairs in which economic transaction is only one element, and in which the passing on of wealth is only one feature of a much more general and enduring contract. [FN 15] See, Farnsworth, supra note 10, at 582 (showing the dominance of kinship by the fact that bargaining becomes a basis for becoming part of a kinship group). [FN 16] I use reproduction in the sense of a material and social process which assumes individuals acting in particular ways in relationship to things and to each other. As such it is a social process which includes (at least) a material dimension of action, (causing the world to be other than it would otherwise be) and a social dimension of structured relations among people, including an expressive dimension of meaning always present in the things people do. I argue that exchange is a social relation which plays an essential role in the process of social reproduction. The act of exchanging goods and services is a consequence of autonomy and the social division of labor. But the act of exchange recreates the conditions for these social relations to be once again constituted. [FN 17] Cf., Steven J. Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 Harv. L. Rev. 369, 377 (1980): By hypothesis, a party enters a contract when it believes that no greater benefit can be derived by expending elsewhere the resources required for the contract performance. Events between the time of formation and the time of performance may prove this belief to have been erroneous. Before its own performance is rendered, a party with a losing contract may seek to recapture foregone opportunities to the extent possible. This can be accomplished only by redirecting the resources committed to the promised performance and therefore by failing to perform the promise. A buyer of corn, for example, may fail to perform a contract for future delivery for a large number of reasons. If the market price falls the buyer will wish to recapture the opportunity of buying on the spot market or on a changed futures market. If the buyer gets a hot tip on the potato market, it may wish to redirect purchase money earmarked for the corn contract to enable it to purchase more potato contracts. If investor confidence in the commodities market slips, the buyer may wish to move its business into stocks or real estate or may wish to go out of business. These and other uses for the resources committed to the initial corn contract may be opportunities necessarily foregone when entering the corn contract. E. Allan Farnsworth & William F. Young, Contracts, Cases and Materials 1 (5th ed. 1995) introduce students to the idea of contract by reference to cotton farmers less than eager after harvest to carry through with forward contracts made before planting; a 50c per pound change in the market price provided the incentive to see self-interest differently from before. [FN 18] I limit my attention to the formal exercise of coercion in law. Informal pressures in exchange are significant, of course; see Stewart Macaulay's classic study, Non-Contractual Relations In Business: A Preliminary Study, 28 American Sociological Review 55 (1963). [FN 19] The independence is formal only because in fact persons are dependent on one another as a consequence of the social division of labor. --- from list bhaskar-AT-lists.village.virginia.edu ---
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