The Limits of Promise

Abstract

This chapter critically assesses three ways in which promise might plausibly claim to play a ‘foundational’ or special justificatory role in contract. According to ‘justificatory necessity’, promise plays an essential or necessary role in the justification of each and every contract doctrine. According to ‘justificatory primacy’, promise defeats all conflicting principles in contract. And, finally, according to ‘justificatory presumptiveness’, the divergence of contract from promissory morality justifies an epistemic presumption that contract law is prima facie unjustified. This chapter shows how these interpretations are insufficiently sensitive to the fact of ‘normative pluralism’ in contract, and how this leads them to seriously mishandle contract doctrine. They end up either repudiating perfectly justified contract law doctrines, upholding problematic doctrines, or, finally, offering the wrong explanation of contract law rules. This chapter argues that the truth about contract law depends on reaching beyond the promise theory and its foundationalist assumptions.