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rationale of this view is that each person should be free to pursue her own ends
to the greatest extent possible. It is a first principle of liberal political morality
that must be secure in what is ours so that our persons and property not be
open to exploitation by others, and that form a sure foundation we may express
the will and expend powers in the world. Promising is very general convention
though less general than language since promising is itself a use of language.
The convention of promising has a very general purpose under which it may
bring an infinite set of particular purposes. There exists a convention that
defines the practice of promising and its entailments. Tis convention provides a
way that a person may create expectations in others. By virtue of Kantian
principles of trust and respect, it is wrong to invoke that convention in order to
make a promise, and then to break it.
From Promises, Morals and Law by Patrick Atiyah, he recognizes that the
theoretical rationale of the common law of contracts is the prima facie
enforcement of promises. The philosophical position has long been that
promising is the paradigm of the contract. He points out that the general
obligation of promises was never sufficient for legal obligation. Atiyah suggested
that if we look to the reasons for which promises are made, we will find a set of
rules that make up the doctrine of consideration. He also claimed that if only
some promises are enforced, then the doctrine of consideration says why and
when this is so. According to him, the doctrine of consideration now appears
odd because of the prominence of the theoretical rationale of the doctrine of
freedom of contract. It is therefore, a matter of no surprise to find that much
contemporary philosophical writing concerning promises appears to be closely
related to the classical model of contract theory. Henry Maine discussed the
primitive society and ancient law. He observed that social organization has
changed a great deal from the time of ancient societies to the present day. In
ancient societies, the mode of social organization was patriarchal. This
difference in organization reflects a difference in thinking so profound that may
call it a different worldview, this worldview takes the family rather that the
individual as its the fundamental unit of obligation. As what he pointed out,
ancient law was framed for corporate action. Not only was the family as the
basis of obligation and responsibility in civil matters, it was in very early
society the basis of law in general. Each family or tribe was its own nation.
Maine observed that there was a significant change in social organization when
locality rather than family became the basis of society. Even after locality
became the basis of society and law in many respects, a social organization was
still patriarchal, and the family was still the unit of obligation in many other
respects including contract law. It is suggested that this change of social
structure from family to locality paved the way for the gradual change of
contract law from a ceremonial process to its mature form. Maines most
famous contention is that social progress is marked by gradual move away from
family obligation to individual obligation, and more specifically from obligation
based on status that is birth or position and to obligation based on contract
that is consent or agreement. He also criticized the ethnocentricity of
scholarship in his own time. The movement of the progressive societies has
been uniform in one respect. Through all its course, it has been distinguished
doctrines accepted in the Philippines and blended into the civil law system are
the doctrines in the field of tort of proximate cause, negligence and
contributory negligence, reckless negligence, last clear chance, vicarious
liability, sovereign immunity, moral damages, loss of profits, speculative profits
and mitigation of damages. In some decided cases, the courts have applied
American tort doctrines, like last clear chance, requirements of duty, sovereign
immunity and nuisance and trespass. In contracts, the Supreme Court has
also held that the consideration of American law and the causa of the civil law
although somewhat different in theory, have equivalent effects in practical
jurisprudence. The common law consideration is narrower than causa,
consideration may consists in some benefit to the promissor or in some
detriment to the promise, causa is the most essential reason of the contract.
Hobbes, on the contrary, asserts that without subjection to a common
power, men are necessarily at war. Hereby it is manifest that during the time
men live without a common power to keep them all in awe, they are in that
condition which is called Warre and such a warre, as is of every man, against
every man. In on this issue, and also on the meaning of civil society, Hobbess
position is the same as the fascist position. Peace is actually war in disguise.
This is why Hobbes argued that corporations should be suppressed and
replaced by the direct exercise of state power. This is why Hitler thought that
declaring war on America was merely a meaningless trivial symbol. It was not
merely a symbol. Peace is not merely maneuvering preparatory to predatory
attack. Unlike the communists and the fascists Hobbes had no specific
concrete plan for suppressing competition and the pursuit of conflicting goals,
and he might well have disapproved of the details of the fascists plans, but he
clearly regarded their objectives as a desirable and popular part of any good
state. Locke was the seventeenth century precursor of classic liberalism, and
Hobbes was the seventeenth century precursor of modern totalitarianism,
particularly fascism. Hobbes argued that what we today call civil society should
exist only by the power of the state, and to the extent that it existed
independent of the state, for example private associations, corporations, and
political discussion, it should be suppressed. This measure is the distinctive
characteristic of modern totalitarianism, both communist and fascist, though
Hobbess reasoning in favor of this measure is fascist, rather than communist.
Contract is an aspect of freedom. The ability to contract is one of the
features of a free man in a free society. Contract may indeed be a form of
vinculum juris, or a bond of law whereby one party becomes or is bound to
another to do something according to law. But the bond is self-forged. This,
indeed, is an objection to the reliance theory of contract, which appears to
create contract not out of a free expression or desires as to one's future
conduct, but imposes contract upon someone because of another's reaction to
what the former has said or done, even, possibly, where that reaction is a kind
of over-reaction. There may be good reasons for imposing some kind of liability
upon the one bringing about the reaction, a sophisticated legal system may
have to create such liability. To call it contract, however, is to pervert the very
meaning and essence of contract. Leaving aside the prospect that a contract
can be ended by some subsequent agreement between the parties, either
relieving them of the original undertaking or substituting a new one in its
place, a contract may be terminated in one of three ways. It may be performed.
It may be frustrated. It may be broken. The first situation affords a genuine
example of termination. The second is more pseudo-termination, in that the
contract may be treated as over, for the purposes of relieving the parties from
any present or future obligation although the contract is not without certain
effects or consequences at common law and under statute. The third situation
may not give rise to termination whether it does so depends upon the reaction
of the innocent or injured party as he may be called. A more detailed
examination of these three possibilities may throw light on the question with
which we are concerned. The classical view was that what had to be found was
an implied term, emanating from the obvious hypothetical intentions of the
parties, had they contemplated what in fact occurred. This may now be said to
have gone. In its place is a more modern, possibly less manifestly hypocritical
approach. One way of speaking about these issues might be to talk in terms of
"qualified," as contrasted with "absolute" obligations. The traditional view is
that contracts result in strict liability, in the sense that, without appropriate
expression by the parties, there are no ways of escape from the performance of
what has been promised, undertaken, and intended. In the light of
developments in the law of frustration, as well as those relating to mistake and
exception, exclusion or limitation clauses, it may be argued that, unless
otherwise stipulated, parties are only promising or intending to perform if what
is intended is possible or capable of performance or to put this another way,
only under certain conditions. When Charles Fried, referring to frustration
cases, necessitating the imposition of a resolution of the problem by the court,
he may well be skating over the question, avoiding the correct description of
what is happening. The logical analysis of the promise principle would involve
an examination of whether the parties had absolutely or qualifiedly promised
something. In either event, nothing would be inherently expressed or implied in
what the parties had promised a one example for that is their expression of
their intentions. Termination by breach is a much clearer instance of giving
effect to the parties will or intentions. The contract-breaker shows that he does
not wish to fulfill or continue to fulfill his obligations. The other party, by his
language or conduct, then reveals whether or not he accepts such breach,
thereby intending the contract to end or prefers that the contract remain in
force and effect thereby intending to hold the other party to his obligations,
regardless of the knowledge that the contract breaker will not keep them.
Interestingly, whether an act or omission that is said to constitute a breach is
of sufficient gravity to give rise to the sort of election, would now seem to
depend upon the foreseeable consequences of such breach, rather than as at
an earlier stage in the development of the law, upon the intended nature of the
term that has been broken. Nevertheless, while the focus of attention may have
drifted, the reason why such attention is paid by the law remains more or less
the same. To express this differently, the only difference between frustration
and breach as modes of ending a contract lies in the responsibility of the party
who cannot perform, not in the nature of consequences of that nonperformance. In either instance, the test of determination is whether what has
happened has so interfered with, or interrupted the willed intentions of the
parties as to mean that their contract is no longer purposive and alive. Where
frustration is the cause, there is no blame or guilt, and the contract determines
automatically. Where there is breach, there is guilt, but there is also the
possibility of some choice being asserted by the innocent party. In the final
analysis, the effect of that choice is of little moment, even where an exclusion
clause may be involved, although once upon a time there was the view that in
such cases, the innocent victim's response to the breach might have some
consequences as regards a limitation or exemption provision in the contract.
Escaping the state of nature has its benefits but the social contract does come
with a price. We must be willing to give up some of our liberty in order to
secure a stable social context. We must give some of our power to a centralized
authority to enforce the rules we agree to for not harming one another and
keeping our agreements. For Hobbes, this central authority had to be very
strong and ideally in the hands of one or a few people. Hobbes advocated a
monarchy as the best form of government. Other advocates of the social
contract like John Locke saw that it was possible to gain the benefits of
cooperation within the framework of a democratic republic. In either form
though, social contract theory says that morality consists in the set of rules,
governing how people are to treat one another that rational people will agree to
accept for their mutual benefit, on the condition that others follow those rules
as well.
Social contract theory has also its own advantages as well as
disadvantages. The major benefits to social contract theory are that it provides
very clear answers to very difficult questions in ethical theory. It also seems to
provide an objective basis for morality. The major disadvantages involve
questions about whether the social contract ever had a basis in history and
how it addresses non-participants in the contract. The fact that the social
contract does not necessarily refer to a real historical event. The point of the
social contract is to act as a test for the justification of moral principles. Also, it
can be said that were implicitly participate in such a social contract by acting
cooperatively in our social arrangements. The second objection has to do with
non-participants to the contract. It seems there are two groups in mind namely
non-human animals and non-rational humans. Strictly speaking both groups
are left out of the social contract and so our treatment of them need not be
guided by the moral principles within the contract. This seems problematic at
the very least and disturbing at worst.
As social contract theory as connected with our government, we said that
it can be defined as a sort of hypothetical or actual agreement between society
and its state. This agreement has been said to be responsible for the bases of
our moral, decisions and instances. In other words, we merely abide by the
rules and regulations of the government in the hope that others will so the
same, subsequently leading to a more secure and comfortable life. On the other
hand, the said theory also captures main ideas around morality being the
same as the law. In conclusion it would be difficult to determine whether all
our moral obligations could be justified by a social contract theory. In the
earlier discussions, there are acts of kindness seen everyday from people which
dont expect anything in return. This state of nature is a great thought
experiment to see how we would act and behave, but most importantly whether
our principles would change. Our moral obligations and duties are by nature
complex and can be justified in a number of ways, and the social contract
theory could be just one of them.