In “Contract as Promise,” Charles Fried admits that several kinds of promises neither are nor ought to be enforced by law. More specifically, Fried alludes to the institution of marriage, as well as contracts of employment, insurance, and carriage, as the type of promises that should not be enforced by law.
Fried’s rationale for such rests on the notion that the aforementioned arrangements, although legally binding since they are initiated by agreement, are “singled out and made subject to a set of rules that often have little to do with that agreement” (Fried 57). Looking into the promises that pertain to marriage, in this piece I will argue that Fried’s admission is not a devastating objection to his overall theory of contract but rather, if taken into consideration, strengthens his argument.
First, I will explain Fried’s definition of a promise ad introduce his theory of contract as promise. Second, I will explain what marriage is and, using Fried’s definition, why it is considered to be a promise. I will also indicate the purpose of legislative recognition. Third, invoking the contract as promise principle and the fundamental element of a promise, I will argue why marriage should not be enforced by laws and how not enforcing marriage does not violate Fried’s contract as promise theory.
The promise principle, according to Fried, is a “principle by which persons may impose on themselves obligations where none existed before” (Fried 36). To make a promise is to commit to doing something one is not obligated to do. If I were to promise you I was going to pick you up at 3 PM on Tuesday, I am imposing on myself the obligation to pick you up. In turn, I gain satisfaction from picking you up while you gain the satisfaction of being picked up. The key element to a promise is that of autonomy. As individuals, we have the inherent right to make autonomous decisions for ourselves, more specifically, decisions that out of our own free will may bind us to others. Fidelity to one’s own word is assumed to enhance the effectiveness of a promise, especially considering that when promises are made, it is to benefit both the promisor and promisee. This promise principle serves as the moral structure of contracts. It is understood that by “promising we transform a choice that was morally neutral into one that is morally compelled” (Fried 119). According to Fried, “so long as we see contractual obligation as based on promise, on obligations that the parties have themselves assumed, the focus of the inquiry is on the will of the parties” (Fried 78). As long as the focus remains on the will of the parties, contracts are seen as morally binding given that a promise is not intended to be broken. “The obligation to keep a promise,” Fried says, is grounded in “respect for individual autonomy and in trust” (Fried 235). Therefore, an individual is morally bound to keep his promises because “to renegade is to abuse a confidence he was free to invite or not, and which he intentionally did invite” (Fried 237).
Having established the promise principle, its relationship to contracts, and what is supposed to impede one from breaking a promise, it is important to evaluate the role of state entities in contracts. Contracts are based on promises given the autonomous nature of both. When two people enter into a contract, it looks like this: A, out of his own free will, promises x to B as long as B y. B, out of his free will and accepting the terms of A’s promise, agrees to y for x. In turn, A receives the benefit of B doing y, while B receives the benefit of receiving x. However, anticipating the possibility of individuals entering into contractual obligations of which they did not intend, contracts might require a third-party enforcer. It is for this reason that contract law exists — in order to ensure the rights and obligations of parties entering into contracts. It is important to note, however, that not all promises are legally enforced.
Marriage is the result of two autonomous people deciding to be united for life. The act of marriage implies obligations the two people involved have towards one another. These obligations, having been considered prior to entering into the marriage, are considered promises to one another that are binding. To avoid confusion, I will focus on the typical male/female marriage in order to explain what marriage entails, although I do not believe that marriage is constitutes a union solely between a man and woman since marriage is between two people who love one another and decide to be united for life, regardless of sociopolitical norms or laws. The essence of marriage is the promise that the husband will give himself in mind, soul and body to his wife, and vice versa, until death separates. This implies that the only way a marriage can be destroyed is in the event of a death and, in fact, such is the goal since entering a marriage already thinking of divorce takes away from the validity of the promises that a husband and wife initially make to one another and of which the entire marriage relies. Marriage establishes a partnership that, given the bond between the husband and wife, consciously binds the two involved; for this reason, marriage is considered to be a contract. Marriage, like contracts, provides assurance. Marriage is legally recognized as a civil union therefore a certain level of enforcement is made by the state; however, the fact remains that marriage is optional and those who choose to marry have come to a mutual agreement to do so. State involvement can be seen as beneficial given the legal implications of marriage.
One of the most attractive benefits of marriage is entitlement. When two people formalize their union through civil marriage, it becomes clear that the husband and wife are entitled to each other, which, unless otherwise specified, entails property, funds, inheritance, etc. Law enforcement of marriage can also be seen as the state’s pledge of honoring the promises that the husband and wife make to one another. It emphasizes the government’s promise to not interfere with one’s life, liberty or pursuit of happiness. By this rationale, the state recognizes its constituents’ autonomy and holds them liable for the promises they make to others. The worst that can happen within a marriage is divorce. In the event of a divorce, the state serves as the mediator, who distributes property, money, etc., to ensure the divorcing parties receive what is fair to both.
Although marriage is a promise two autonomous adults make to one another that needs to be honored, laws should not legally enforce marriage. The theory of contract as promise is centered on the idea of self-imposed obligation. According to Fried, “some writers argue that obligation must always be imposed from outside” (Fried 85). However, if an obligation is imposed from outside, such as a government or law entity, then any promise made cannot truly be enforced since the parties involved are not making an autonomous choice.
Some may argue that marriage itself is a legal construct; however, marriage precedes laws since historically people have always united with the intent of living as one until the end of time. Since two people marrying exist outside of law, enforcement by such is not needed. Marriage itself is the culmination of promise and the standard of morality to which it is held. The morality of promising is essentiality the spine and bones of a marriage. Removing self-obligation from promises and replacing it with external obligation creates complexities when speaking of marriage.
If two people no longer wish to be together, but the law enforces upon them to remain in the marriage, even if there is a mutual agreement to separate, then marriage itself is destroyed and instead turned into a burden.
A relationship as intimate as marriage cannot be influenced by outside forces; it is something that needs to be dictated solely by the two people involved since it requires self-obligation. The difference between enforcement of marriage due to self-obligation and enforcement of marriage due to external obligation is that external obligations can be threatening. If laws enforce marriage, then failure to comply can lead to consequences at the hands of the state; force may be employed to compel compliance. The only force that should compel compliance, however, is the force of self-obligation that is originally and preferably employed when making promises. Although contract enforcement generally works for the common good, such is not the case when it comes to marriage.
Fried’s overall theory of contract — contract as promise — is based on the important role of self obligation when it comes to making promises and how consequently contracts are based on the same. Claiming that promises pertaining to marriage neither or nor ought to be enforced by law does not contradict his theory of contract as promise, but rather it strengthens the most fundamental aspect of his theory. If there is no self-obligation, under the implications of contract as promise, then a contract cannot exist since there is nothing that will compel one to initiate a binding situation to begin with.
Fried’s theory simply aims to assess what promises are and why they are binding. Part of what make a promise binding is the mutual agreement, both in mind and intent, of both people involved. External obligations imposed on a person leads to promises made under duress — severity of such of course varying. The lack of free will when making a promise opens the door for a variety of reasons as to why a person should later on be let out of such a promise.
Enforceable promises are those that involve two aware and willing individuals, which is why marriage, in light of it being a promise, should not be enforced by outside agencies but rather by the two people involved. Therefore, Fried’s admission that not all promises should be legally enforced is not a devastating objection to his overall theory of contract but rather, if taken into consideration, strengthens his argument.