New Social Contract Theory

Author: Macneil
Publisher:
Publish Date: 2004-01-01
Features: Excerpt These linking norms are also crucial for elastic norms, as the latter are predicated on adjustments within economic relationships. In the world of individualized transactions, repayment, dependence, and expected interests are realized through strict adherence to their commitment-based agreements and indifference to other matters. Thus, all necessary changes occur outside of individualized transactions. However, if adjustments occur within contractual relationships, these interests will inevitably become the cornerstone of change. Regardless of the cause, expectations and dependence will become factors in adjustments, and curbing so-called sudden wealth is the fundamental basis of all social arrangements. This does not mean that reducing all ordinary norms to the sanctified norms of repayment, dependence, and expected interests will be easy. Doing so would obscure the substantive concepts of the roles played by individual participants, make it difficult to understand mutuality and exchange surpluses, and complicate the understanding of the important differences between plans and consent, their intertwinement with elasticity, and their conflicts. These linking norms permeate other norms deeply but do not override them. I call these two norms "linking norms" for another reason as well. In many cases, they also link other norms to more precise behavioral rules. All students of contract law understand how they connect commitments—agreements—with contract rules and contract remedy rules. The same applies to other norms. For example, recall the example of a taxi driver becoming a professional philosopher on the way back from Ohara. It is precisely our dependence on him as a taxi driver that allows us to link his role to our legal right to a punitive judgment for his breach of contract. These linking functions—between other norms and between these norms and more precise behavioral rules—place repayment, dependence, and expected interests at the center of analyzing contractual behavior and its rules. Problems are often resolved well without resorting to the norms discussed above. Just as we can often resolve legal issues by carefully examining an unequivocally clear legal rule without further legal analysis, we often do not need to engage in legal analysis after examining repayment, dependence, and expectations. We only make mistakes when we believe they are the end of the road.
8. The Setting and Limitation of Power. Now let us revisit the issue of power. Power in contracts is constrained by norms that both establish and limit it. As mentioned earlier when discussing truck drivers and trucking companies, power is inherent in the concept of exchange itself, as well as in the public and private property rights that underpin it. At the same time, the concepts of consent, contractual plans, contractual solidarity, and linking norms all assume the ability to set changes within power relationships. For example, when people sign installment purchase agreements, they establish power for the seller that it previously did not possess. Without this transfer of power, other norms remain ineffective. Lawyers are very familiar with legal power. But power can also be economic, social, and political; indeed, at the level of the normalized operation of contracts, it is these latter powers—not legal power—rather than valuable. Contractual power is not only diverse but also set in ways other than through commitments. For example, as mentioned earlier when discussing dependence, power can arise through evolution. Additionally, external regulations on contractual relationships, such as the provisions on obligations in workers' compensation laws, can also establish power.