Date: 13 Jan 97 02:57:22 EST
From: Chris Burford <100423.2040-AT-CompuServe.COM>
Subject: BHA: Consideration


I am very interested in this idea of Howard's, and  the
exchange between him and Hans E. I hope I am not cutting 
inappropriately into this debate but it does seem important.
This legal oddity (sorry, Howard, I am speaking as a lay person)  
may well test our ability to probe the underlying mechanisms beneath the 
surface phenomena.

  I think it may well also be interesting for
how atomised bourgeois civil society has grown out of a more sensuous 
interdependent society and this has become expressed in legal 
terminology. I would expect the legal terminology to have developed
over the 400 years. 

The modern examples I find it very hard to get my head around. But the
word itself seems to come from an age of social interdependence 
and reciprocity bound by social conventions more than the cash nexus,
and to involve gifts as well as promises. Gifts are a traditional way
of creating and signalling expectations.
 

>From the Shorter Oxford Dictionary (two volumes). 

Consideration:

1. (1651) The action of looking at; beholding, contemplation

2. (Middle English) The keeping of a subject before the mind; 
attentive thought, reflection, meditation; (1489, with plural) a
reflection.

3. (1548) The action of taking into account; the being taken into
account; regard.

4. (1460) The taking into account of anything as a reason or motive;
a fact or circumstance taken into account, or to be taken into 
account.

5. (1607)Something given in payment; a reward, remuneration; 
a compensation. Example 'They hoped that I would give them 
some consideration to be carryed in a chaire to the toppe.'

6. (Law) Anything regarded as recompense of equivalent for what 
one does or undertakes for another's benefit; esp. in the law of 
contracts, 'the thing given or done by the promise in exchange for 
the promise' (1530)

7. (Middle English) Regard for the circumstances, feelings etc of 
another. 

8. (1598) Estimation; regard among men; consequence. 


I do not necessarily see legal consideration as coercive but as reciprocal.
Since laws are designed to be enforced, it *looks* coercive,
but it could just be normative (if I have got the terminology correct). 
The social relationships may be very unequal but the interdependence 
may not be especially coercive although the weaker party in the relationship
may be at a great disadvantage and have little alternative, eg may be a
proletarian and have nothing to sell but his/her labour power.

In atomised bourgeois civil society all this has to be laid down in an
expanding body of law, because the isolated individuals have no 
organic interdependence to take into consideration with one another.
However the men who carried the landed gentleman to the toppe of the hill
in 1607 in the hope that a coin might be tossed their way at the end, did 
it in the expectation that he would periodically enjoy going to the top of 
the hill in the future so that it was worth subserviently 
giving him an initial free ride.

Even now a matrix of social expectations exists. In previous eras you would
make a gift as a sign of goodwill and hoped future reciprocity. In modern
commodity society "free" promotional gifts and loss leaders are a prominent
part of customer relations.   

I think this is interesting because like other marginal phenomena on the 
edge of commodity exchange, like the "wages for housework" argument, it tests
the extent to which atomised civil society has triumphed and the extent to 
which human beings still remorselessly insist on a wider social context.
Thus increasingly advertising stresses the social use value and status of 
commodities rather than their functional value. And society demands 
increasing social responsibility in the production of commodities.
The two leading supermarket chains in the UK are now competing with 
customer loyalty cards; the one I use, calling theirs a "reward card".
I do not know if I could sue them for loss of consideration for my 
loyalty if they subsequently withdraw this, but to my way of thinking
this is all part of the same phenomena of interdependence and reciprocity
even within capitalist society.

As well as reciprocity, there is a time delay between one good and the other good
implying a trust in social convention. Pehaps this trust is what bourgeois 
society lacks and which therefore must be enforceable in law.
 


Hans E refers to the distinction Marx makes between citoyen and buerger. This
I recall is in On the Jewish Question and I do not feel I understand it well, but 
the article certainly makes strong criticisms of civil society which seem to 
be relevant to this question of "consideration".

I am afraid these comments are at rather a tangent to the article,
but I hope nevertheless help to discuss the underlying mechanisms.


Chris Burford
London. 


     --- from list bhaskar-AT-lists.village.virginia.edu ---