simply being taken over by the civil courts at the Reformation. By contrast with England, the Scottish experience resulted in a ‘very significant fusion of canon law and Scots common law’.81 This may still be seen today in the continued existence of a discrete obligation of promise in Scots law.

These differing jurisdictional experiences of the canon law’s relationship with secular law and courts make it difficult to state a concise view on the overall effect of canonical principles, rules, and maxims relating to promise (and to contract in general) on the civil law of Europe as a whole. Helmholz has expressed the view that the canonical interest in promises was somewhat restrictive for developing contract law, given the form of promises as unilateral acts in contrast to the bilateral nature of contract.82 This though states too narrow a conclusion for the present field of study, given that promise has been defined widely in the introductory chapter so as to include contractual as well as unilateral promises. Quite apart from this definitional point, however, it is virtually certain, as will be seen in the next chapter, that the canonical enforcement of promises was largely responsible for the rise of assumpsit in English law, a promissory action which was to provide one of the principal strands of modern English contract law. In addition, the canonical enforcement of unilateral promises was unequivocally incorporated into Scots law, albeit with an added requirement of form that had not been present in the canon law. The canonical position on certain remedies as well as on error was also certainly to influence secular contract law, as again will be seen in the next chapter. Helmholz’s conservative view seems to underestimate the influence of the canon law on the development of the secular law of contract.

Objections to the morality of promising as having a natural law/virtue basis  Thus far, the case for recognising the morality of promises based upon the idea of their contribution to the virtuous life, upon natural law, and upon scripture and canon law, has been put largely without any criticism of these various foundations. There are, unsurprisingly, a number of objections to this view; some of these will be developed in the recitation of alternative theories concerning promise later in the chapter, given that such later theories were often reactions against the earlier natural

expressed the view that, excluding appeals, 24 to 27 per cent of judgments concerned ‘the rendering of money or goods by one party to another for the fulfilment of contracts’ (Donaldson, ‘The Church Courts’, p. 366).

81Ibid., p. 266. See also Cairns, ‘Ius Civile in Scotland’.

82Helmholz, Contracts and Canon Law, p. 52.

contractual principles, including a distinction between types of contract terms (those being the essential, natural and accidental). Rationalists are sceptical about the idea that certain types of contract can have specific ends, from which one may deduce the appropriate causae or reasons for which such contracts are properly undertaken. The scepticism of rationalist science and philosophy was largely accepted by subsequent thinkers,84 an acceptance which Gordley has argued has robbed modern contract theory of an underlying philosophy sufficient to explain its principles and rules.85

There are certainly few in the present age who would subscribe to an Aristotelian-Thomist view of the physical world. However, not only has virtue ethics undergone a revival which is not dependent upon an acceptance of the Aristotelian view of the nature of matter and the physical world, but, by its own standards of scientific proof, the rationalist, scientific theory of human nature has not been able to demonstrate the falsity of the concept of virtue or of a virtuous life, such ideas lying beyond the field of scientific proof. Moreover, even if one does not accept the ideas espoused by new virtue ethicists, concepts such as liberality and commutative justice and the attribution of specific ends to types of contract have to some extent found new form and substance in currently popular ideas such as good faith. That concept has come to supplement and regulate the idea of the autonomy of the will in a not wholly dissimilar way to that in which the Aristotelian virtues once did. Whether, however, the idea of free will tempered by good faith can be considered a coherent basis upon which to build a modern contract philosophy is explored later.

The second line of attack on the virtue/natural law theory of the moral force of promises focuses on the natural law element of the tradition. The criticism, simply put, is that the assertion that there is a natural law is false. Such criticism holds that there are no moral laws evident from the nature of the world around us, and that it is therefore not self-evidently the case that promising is morally virtuous. This was the position adopted by the positivists who flourished in the period from the Enlightenment onwards. Their contrary views are discussed below, so it suffices to say at this point that these alternative theories rest largely upon the view that there is no moral quality to actions (including promising) apart from the

84Though, for instance, much theology continues to be based upon Aristotelian ideas, such as the distinction drawn between substance and accidents which is used to explain the Eucharistic doctrine of transubstantiation.

85See Gordley, Philosophical Origins, pp. 230–1.