No Second Motion Like The Last


People are not immutable entities. We change—all the time. We change our plans, we reconsider our ideas, we shift our priorities, we recalibrate our commitments. Even promises made to our nearest and dearest are subject to contingency. A friend may promise to run an errand for another friend, but some other obligation may arise that causes the first friend to re-evaluate, and possibly break, the original promise. Individuals are constantly rethinking their own positions. There is a certain persistence in the way we revise and sometimes reject our plans.

This idea of persistent agency fascinates Professor Aditi Bagchi, particularly as it relates to the theory of contract law. In her scholarship, Bagchi writes about the nature of contractual obligation, contract interpretation, and questions in political and moral philosophy as they arise in contract. She has explored these issues with respect to employment and consumer contracts in particular. She has a related interest in the comparative political economy of contract, labor, and corporate law.

At Fordham Law, Bagchi teaches Contracts and Labor Law. Before she entered academia, she was an associate at Cravath, Swaine & Moore LLP and served as a clerk for Judge Julio Fuentes on the U.S. Court of Appeals for the Third Circuit. She obtained her J.D. from Yale, an M.Sc. in economic and social history from Oxford, and an A.B. in government and philosophy from Harvard.

In this excerpt of “Contract and the Problem of Fickle People” in Wake Forest Law Review (forthcoming 2018), Bagchi examines the moral significance of changing our minds and suggests that contract law is more lenient than the morality of promising might lead us to expect—and that is how it should be.

We often understand promise and contract as practices that promote autonomy. By making a promise or entering into contract, we are able to alter our moral and legal position, respectively, merely by expressing an intention to do so. You were not obligated to pick up your friend from the air- port on a given occasion until you promised to do so. You were not obligated to refrain from disparaging a company’s products until you agreed not to as its employee. Most of what we owe each other does not depend on our communicated intentions in this way. Similarly, most of our legal duties to others do not depend on a communicated intent to assume them. Obligations of our own deliberate making are unique.

Why recognize the power to bind ourselves in this way? The promise to help your friend advances your friendship, and the promise not to disparage your employer makes it possible to access employment. More generally, David Owens has argued persuasively that “normative powers” like promise allow us to author our normative world, rendering it more of our making. When we actively shape our normative position, we exercise a distinctive dimension of our moral agency. The resulting responsibility for our moral position is important to our self-conception as agents. Whether we are responsible for what we owe others is not a metaphysical fact; it depends on whether we take each other to be responsible. By treating promises and other exercises of normative power as binding, we construct our own agency.

But the binding character of promise and contract is constrictive too. In fact, on their face, promise and contract reduce the choices available to us in the future. Because you promised to pick up your friend, you can no longer spend the afternoon reading, running, or staring at the wall, even if you later decide that one of those is a better way to spend the afternoon. Because you agreed not to disparage your employer, you may not share views that you come to hold deeply about the place where you spend most of your time. Scholars of promise and contract have tended to conclude that because we bind ourselves through those practices, the constrictive effect of promise and contract does not pose a threat to autonomy. On the prevailing view, the power to put ourselves in a new moral position enhances our autonomy even if we find ourselves newly encumbered.

Such optimism about promise and contract is excessive. This Essay does not set out to deny that the normative power to make promises and enter contract enhances our moral agency. But that benefit comes at a cost. The same ideal of moral agency that makes promise valuable makes the power to revise and reject commitments that we have made valuable too. In fact, the power to revise and reject recognizes an important feature of our agency: it is persistent. That is, because we are persistent agents, we continuously revisit our values and ends. We can and should act in a manner that reflects our new assessments.

Of course, the human tendency to break promises and breach contracts reflects a variety of weaknesses, including the bare temptation of self-interest. We might fail to carry through on a promise because we have already obtained the advantage we sought in making the promise and see nothing to gain from performance. Or we might regret an agreement because we learn new facts that reveal it to have been a bad deal for us. Arguably, the assignment of risk in contract is intended precisely to deal with this sort of painful resolution to factual uncertainty. However, we also break promises and breach contracts because we have changed our minds in a morally significant way.

We often change our minds about the commitments we have made because we reject some value on which the commitment was based—a life plan, a relationship—or because we reassess the balance of the same reasons we had previously considered. Even a decision to breach that appears at first blush to be a momentary failure of will likely reflects some underlying ambivalence in our reasoning about the agreement. At a critical moment, we might revive reasons that we earlier rejected or had judged to be outweighed by other reasons. Our tendency to change our minds is easily dismissed as fickleness because the internal processes that result in a change of mind are often opaque to others. All that others see is the same person doing something different. A change in behavior will appear sudden even though the reasons for the change have been accumulating for an agent for some time before the reasons reached tipping weight. Of course, some people are more sympathetic to change in others and will project reasonable uncertainty that they cannot observe directly. Similarly, some cultures are more tolerant than others of such “multiplicity” within a single person and her life.

Regardless of our particular dispositions, we all know from subjective experience that we change our minds because we are still thinking. And as agents, we aim to translate our new thoughts into new action. The reasoning behind a change can be careless or careful, just as our initial commitments are sometimes careless and sometimes careful. It is in either case an exercise of practical reason, the capacity for which defines us as moral agents. Persistent agency is thus a morally valuable capacity, and it deserves accommodation. I will argue below that the practice of promise cannot accommodate persistent agency within itself but the institution of contract should, and it does.

To be sure, contract law does not entitle us to impose losses on others so that we might indulge our fickleness. But in several respects, it is more lenient than its private counterpart, the morality of promise. Promise-making benefits individuals who are committed to moral stability and prepared to undertake its weighty obligations. Many of us choose to exercise normative power over time at the expense of constricting our persistent agency—at least in some areas of our lives. Others might self-consciously take steps to avoid moral encumbrances. Because we are all equally entitled to the support that contract law provides in our daily lives, contract law is a more liberal institution than promise. It facilitates commitment without endorsing any one conception of personal virtue over others.

It is characteristic of promissory theory … that it is oddly centered on the promisor and her autonomy. Even if contract serves the principle of autonomy—and by recognizing normative powers, it does, among other purposes—contract law does not rest enforceability of private agreements on a particular theory of how promising serves autonomy. It does not rest on promise per se. To do so would have contract adopt the animating values of that practice at the expense of other values, like the value of changing one’s mind, that the legal institution needs to accommodate too. Of course, one is not very free to change one’s mind in contract as we know it. But the apparent reasons for restricting that aspect of agency have to do with the moral claims of others, not some rival dimension of the promisor’s own agency. Our moral interest in changing our minds does not generate a right to harm others, but it does generate a reason not to have courts hold us to our commitments for our own sake.

Contracts are bilateral relationships, and much of their normative dynamic centers on what parties to contract owe each other. But the choice by each contracting party to enter a contract, as well as the choice to perform it, also reflects her separate moral life, including her own plans and priorities. These two normative frameworks, one bilateral and one single-agent-centered, intersect in promissory accounts of contract. Promissory theories regard contract as a species of promise. Promise creates an obligation to another person, but we accept promises as binding in the first place because they promote individual autonomy. This Essay has studied the latter contention, i.e., that promises promote autonomy. I have elaborated the ways in which self-created obligations that sustain over time undermine persistent agency, which is a premise of autonomy as it is construed in most contract theory. The tension between our interest in the normative power of promise, on the one hand, and our interest in allowing persistent agency its mark, on the other, cannot be diffused within the practice of promise. But promise is a private practice into which people can opt in or out as they see fit. Extending its logic into the coercive domain of contract is more problematic.

We enter into employment contracts expecting work of a particular kind to give meaning to our life. We enter into a residential lease in order to live in a certain way—in a given place, with particular other people (or not). We buy products or sign up for services because we prefer those goods and services over others, and we express something about ourselves by spending our money in those ways. Contract, like promise, is enormously powerful because it enables us to coordinate with others in service of our values and plans. But sometimes we change our minds, and those contracts turn out to be disempowering. This does not mean we should get out of them; after all, contract is bilateral, and other people’s interests are at stake. But we cannot ground our legal obligation to abide by those contracts in a promissory morality that radically privileges our earlier agenda over our new values and projects.

My claims are not radical. I have not claimed that we cannot be described as continuous persons over time in any metaphysical sense. Nor have I suggested that our values and plans do not span time. Indeed, the idea of a life plan for the moment is incoherent. The picture of the person I have drawn instead is familiar: We endorse values that apply over the course of our lives, and we make plans that can only be realized over time. However, we revise our values and we revise our plans, and then those new values and plans stretch out into the future, no less vulnerable to revision than those that they replaced.

I have argued that people are fickle in this way and also that we should endorse this aspect of ourselves as reflective of moral agency. How much we endorse it, and how much weight we give to this dimension of moral agency, amounts to our conception of the person. We share a conception inasmuch as we all value stability to some extent, and change to some extent. We diverge inasmuch as we attach different weight to those values. 

Promise prioritizes a stable picture of the self over its fickle rival, but contract ought not to similarly prioritize moral stability over moral evolution. Although the interests of others limit our right to change our minds, contract law avoids any parochial view of moral agency and declines to promote a stable conception of the person as an ideal in itself. It is not for contract law to promote a personal ideal of internal stability and coherence any more than it would be appropriate for private law to promote a dynamic, pluralistic worldview. Liberalism is associated with a special solicitude for autonomy but we should regard agnosticism about the implications of autonomy for self-commitment as the true liberal imperative in contract.

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