Uncertainty, Liberalism and Contract
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Uncertainty, Liberalism and Contract book
It is only to be expected that in a ﬁeld such as the common law of contract, the rational choice subject would play a key role in formulating visions of legal subjectivity. However, what is rather surprising is that in foundational legal formulations, the treatises of Bentham and Smith are never mentioned. Indeed, Bentham complained of the fact that his central concerns were ignored (Atiyah, 1979, p 428). The same might be said with respect to Bentham’s considerable emphasis on the ‘yolk of foresight’, with which he sought to burden – or liberate – the mass of the populace. While the courts were concerned directly with the ways in which legal subjects should calculate the uncertain future, and how they should be held responsible for the consequences of their actions where they had failed to act with ‘reasonable’ foresight, there is once again a deafening silence concerning the theoretical treatises of economic theory. Although this chapter examines why this might have been, more central to its concerns is examination of certain strands of contract law as sites in which uncertainty was developed as a liberal technology of government in ways other than as an application of liberal economic and political theory. In this genealogy we can trace the development of certain legal categories and techniques of government and self-government – such as ‘reasonable foreseeability’ and ‘expectations’ – which drew on lawyers’ constructions of what was a common sense, situated model of ‘rational calculation’. In turn, these constructions were created to govern subjects who confront futures that are held not to be calculable in any precise way. Coupled with the possibility of legal sanctions, they operated not merely as philosophical speculations, but as practical governmental tools that both solved disputes and provided a didactic model of how one is to govern life ‘reasonably’ under such conditions. In this way common law is one of a number of sources inventing and assembling the technologies and discourses of uncertainty that have become central to liberal governance.