An Introduction to the Philosophy of Law, Roscoe Pound [beach read book txt] 📗

Ages primitive ideas came back for a time through Germanic law. General security in its lowest terms of peace and order was the pressing social interest. There was little commercial activity. The civilization of the time did not involve the corollaries of our jural postulate. Religiously sanctioned undertakings by promissory oath and real transactions of pledge of person or property and of exchange gave rise to a simple system of formal undertakings. Out of these came a theory of causa debendi, or reason for owing the promised performance, which has had a profound influence upon subsequent thinking. The Roman causa ciuilis was a legal reason for enforcing a pact. Under the influence of the Germanic idea causa becomes a reason for making the pact, the good reason for making it furnishing a sufficient reason for enforcing it. For a time it seemed that the church might succeed in establishing a jurisdiction over promises. Oaths and vows involved religious duties and might well be claimed as the province of the spiritual. But the moral obligation of pacts, binding the conscience of a Christian, might also be cognizable by a zealous corrector of the conduct of the faithful for their soul's welfare. Had not the power of the canon law broken down and the law of the state developed rapidly in respect of the security of transactions after the sixteenth century, the law of contracts might have grown along religious instead of along philosophical lines, and perhaps not to its advantage. As it is, one need but read Doctor and Student with the title de pactis of the Corpus Iuris Canonici and casuist writings as to the moral efficacy of promises before him, to see that religion paved the way for much that was done presently in the name of philosophy.

To the jurists of the seventeenth and eighteenth centuries no distinction between natural obligations and civil obligations was maintainable since all natural rights or obligations must for the very reason that they were natural be legal also. If it was morally obligatory that one adhere to a pact, then it must be treated as a contract. However much systematized analytically, the Roman categories of contract did not deal with undertakings from this standpoint. What the jurists desired was not analytical categories but a principle upon which men were to be held or not to be held upon their promises. Thus the philosophy of contract, the principles underlying the binding force of promises and agreements, became the chief problem of philosophical jurisprudence of the seventeenth century, as interests of personality were the chief subject of discussion in the eighteenth century, and interests of substance, the philosophy of the law of property, the chief subject of discussion in the nineteenth century. The decisive element in seventeenth-century thought as to contract was the idea of natural law; the idea of deduction from the nature of man as a moral creature and of legal rules and legal institutions which expressed this ideal of human nature. But the idea was put to work upon existing materials and the result was a reciprocal influence of the conception of enforcing promises as such because morally binding, on the one hand, shaped to some extent by canon law and casuist discussions of what promises were binding in conscience and when, and the ideas of nudum pactum and causa debendi on the other hand. Roman law was assumed to be embodied reason. As D'Aguesseau put it, Rome was ruling by her reason, having ceased to rule by her authority. Hence all consideration of the subject starts with the assumption that there are morally naked agreements which for that reason are to be naked legally. Where there was an exchange of promises there was the authority of Justinian for enforcement (synallagma) and it was easy to find a reason in the analogy of exchange of property. Where something was exchanged for a promise, that something was a causa debendi. But suppose there was no exchange of promises nor was anything exchanged for the promise. There was nothing but a promise assented to. In Roman law this would have to take the form of a stipulation. In the Germanic law it would have required an oath or the form of a real transaction of pledge or exchange. At common law it required delivery of a sealed instrument. Clearly there was no moral efficacy inherent in these forms. Why should these "abstract" promises be enforced and not others? Should every such promise be enforced or should none be enforced without something in the way of exchange, or should such promises be classified for the purpose of enforcement, and if so, how?

Two theories arose in the seventeenth century. One may be called the theory of an equivalent. This theory is obviously a rationalization of the Germanic causa debendi influenced by canon law and casuist writings. According to this theory an abstract promise, no equivalent having been given for it, is not naturally and hence is not legally binding. Three reasons have been given for this which have figured in juristic discussion of the subject ever since. It was said that one who trusts another who makes a promise for no equivalent does so rashly. He cannot ask to be secured in such an unfounded expectation. This is too much in the spirit of the strict law. It denies any interest except where the law secures it. It says that if the law does not secure the interest, one is a fool to rely on the promise and so has no interest. In like manner the strict law said that if one gave his formal undertaking through fraud or mistake or coercion, he was a fool or a coward and was not to be helped. But we cannot prove the interest by the law. We must measure the law with reference to the interest. Again it was said that if one promises without equivalent he does so more from "ostentation" than from real intention and so an equivalent shows that he acted from calculation and deliberately. It is only deliberate promises that are morally binding, for only such promises are relied upon by the prudent, upright man in his intercourse with his neighbors. If this reason is sound, equivalent is only a mode of proving deliberation and the real point should be that the promise was made deliberately as something by which the maker expected to be bound, not that the deliberation was evidenced in a particular way by an equivalent. A third reason was that one who parted with an equivalent in exchange for or in reliance on a promise is injured in his substance if the promise is not kept. But if this is the reason, the law should simply require restitution in case of non-performance. If the interest involved is the deduction from substance through rendering the equivalent, the obligation should be quasi ex contractu rather than ex contractu.

Our Anglo-American law of contracts was much influenced by this theory of equivalents. In the seventeenth century four types of promise were legally enforceable at common law: (1) A formal acknowledgment of indebtedness by bond under seal, often conditioned upon performance of a promise for which it was a security, (2) a covenant or undertaking under seal, (3) the real contract of debt, and (4) a simple promise upon consideration, that is, in exchange for an act or for another promise. The first conclusively acknowledged an equivalent, in the second it could be said that the seal presupposed or implied one, in the third the obligation arose from the detention of something by him to whom it had been delivered, and in the fourth the act or counter-promise was the motive or consideration for the promise and as a cause of or reason for making it was the equivalent for which the promisor chose to assume the undertaking. With some aid from a dogmatic fiction in the case of covenants, the common law could be adjusted to this theory reasonably well. Accordingly as far back as Bacon we find consideration treated from this standpoint in the English books. But it was never a satisfactory explanation. If the theory was sound it ought not to matter whether the equivalent was rendered before the promise or after it or simultaneously with it. Indeed, English equity in the nineteenth century took subsequent action in reliance upon a promise of a gift to be a common-law consideration on the basis whereof the promise was specifically enforceable. Equity never wholly adopted this or any other theory. At least after the middle of the eighteenth century equity was supposed to follow the law as to what was a contract. But the common law was not settled till the nineteenth century and we find the chancellors using consideration frequently to mean not equivalent but any reason for making the promise and thus making it synonymous with the civilian's causa. The so-called meritorious consideration, consideration of blood and of love and affection, and the cases of promises sustained by moral obligation of a debtor to secure his creditor, of a husband to settle property on his wife and of a parent to provide for a child, show the idea of causa at work in equity. It is significant that Doctor and Student was often cited in these connections. The most thoroughgoing attempt to apply the equivalent theory to be found in the books is Langdell's working out of a system of the so-called conditions implied in law or dependent promises on that basis. As an example of vigorous legal analysis it rivals Austin. But it did not succeed in shaping the law.

On the Continent the second theory, the theory of the inherent moral force of a promise made as such, came to prevail. This was the theory of Grotius. It was generally adopted by Continental writers of the eighteenth century and, as has been seen, it broke down the Roman categories and led to the rule that a promise as such, intending a legal transaction, created legal obligation. At the end of the eighteenth century Lord Mansfield came very near establishing it in our law by his doctrine that no promise made as a business transaction could be nudum pactum. But he was too late. Growth stopped for a season and the nineteenth century set itself to systematize and harmonize what it had received rather than to carry the development further.

When the natural-law foundation of enforcing promises crumbled, the metaphysical jurists sought to provide a new one. Kant said that it was impossible to prove that one ought to keep his promise, considered merely as a promise, and deduced contract from property as a form of conveyance or alienation of one's substance involved in the very idea of individual rights. So far as consistent with abstract freedom of will according to a universal law one might alienate his services as well as his property, and an undertaking to perform something was an alienation of that sort. This view was generally taken so that while the seventeenth century sought to rest rights upon contract and the eighteenth century rested contract on the inherent moral significance of a promise, the nineteenth century, making the philosophy of property the important thing, rested contract on property. Three of these theories are worth a moment's notice.

Fichte says that the duty of performing an agreement arises when one party thereto begins to act under it. Juristically this seems to be a rationalization of the Roman innominate contract. There, in case a pact was performed on one side, he who performed might claim restitution quasi ex contractu or claim the counter-performance ex contractu. Philosophically the idea seems to be that of the equivalent theory, in the form with which we