Moving Beyond Promise: A Response to The Choice Theory of Contracts

It is impossible to overestimate the impact and importance that the publication in 1981 of Charles Fried’s Contract as Promise has had on the field of philosophically inclined contract theory.1 The book was and still is considered seminal. At the time, the very idea of a contract law grounded on liberal premises and as an independent legal category was under sustained attack from the Critical Legal Studies (CLS) movement, which viewed contract law and indeed law generally as an instrument of social control. Like any tool, its value depended on its usefulness for achieving the end to which it was put. Aside from that, it was dispensable. It was this challenge that kept Fried awake at night.2 Fried’s response was as devastatingly simple as it became powerful. He linked or grounded contract law in the morality of promise, which itself was supported by a negative conception of freedom emphasizing the importance of freedom from interference in the pursuit of one’s self-chosen goals and projects. With this account, Fried gave contract law an anchor. Contract was no more dispensable than promise; the freedom of the individual depended on it.