Common use of The Problem Clause in Contracts

The Problem. Progress as a Notion that ‘Speaks Itself’ Narratives of progress in international law texts, such as the ones listed above, have something in common. Beyond expressing a conviction or aspiration relating to a concrete legal situation, they seem to ‘speak themselves’. With this phrase I do not refer to the lack of supportive evidence or arguments, although that may also be the case. I rather suggest that expressions, such as “social progress and better standards of life in larger freedom” (Preamble UN Charter), refer to some type of progress that occurs in a manner independent from subjective judgment. This idea of progress is not a political one that is made up by the author of its statement based on ideological grounds but, rather, it can be found unfolding before our eyes in a world out there. For progress to be ‘true’ it must not be invented or concocted by the author of a text (let it be an individual, institution, group, or the “founding fathers”). For progress to be ‘true’ it needs to be merely recorded or, at best, discovered by the author of a progressive discourse. This is a very important point that is often missed. Although we all have different ideas about what true democracy is and how to achieve it, we all think that achieving more democracy means progress for society because there ultimately is such a thing as democracy (democratic institutions, democratic processes, etc.) which transcends our individual definitions and constitutes a greater good, irrespective of (or even against) our views. Similarly, ‘true’ progress needs to have some properties that transcend the subjectivity of the author and exist in some objective (immanent, obvious, true, neutral, universal, transcendental, etc.) dimension. Something is progress not because I say so but because it is so, regardless of whether I say so or not. Beneficiary must be not only the author of the claim but also a totality (e.g. international community, humankind, civilization, etc.). This is certainly the case with the UN Charter’s Preambular commitment to “social progress and better standards of life in larger freedom” but also in debates about more international law, more democracy, more rule of law, more human rights, more international criminal law, more international tribunals, and so on. Progress may be realized by an author institution, but it may also occur without and beyond the author. The use of a notion of progress that ‘speaks itself’ is a legitimating rherotical move. The content of one’s claims is automatically placed beyond the test of internal critique, a critique of internal contradictions and gaps. In certain international law debates, it seems to be ‘a general truth’, or ‘beyond doubt’ that some developments have an intrinsic claim to be considered positive for international law or for society at large. When a world war came to an end in 1918, disposition existed to push out along new lines, and remarkable progress was made over a period of years. Intelligence and zeal were devoted to current problems of international life on an unprecedented scale, and some advance was made towards a proscription of force. If a larger measure of success did not attend these efforts, it was due to a variety of causes […]. The experience demonstrated that no scheme of organization and no method of procedure can be enough in itself. Enduring progress requires a sustained willingness of peoples to pursue common effort.20 One will immediately counter-argue that there is nothing wrong with using a notion of progress that ‘speaks itself’ in this way. The absence of the “I” of the author in our texts could be a mere narrative or aesthetic convention, imposed by our specific professional culture! It is not necessarily reflective of a commitment to objectivity. It is not about pretending that one’s