3.  Promises as moral obligations: the practice of promising

have been fixed by such societies. Whether these boundaries are properly to be seen as fixed by reference to natural law, by the exigencies of human existence and intercourse, or with some other consideration in mind, is explored by reference to the various theories of the moral force of promising considered below.

The exploration of morality and promises to be undertaken puts the focus squarely on the practice or institution of promising, rather than on individual promises.10 A promise will have or will lack moral force depending on whether the constituent requirements for making promises in general have been complied with. Individual promises which conform to the practice will have prima facie normative force as moral obligations, though there may be specific reasons why a promise lacks moral authority in the circumstances of the case, as the discussion will show.

While the nature of the practice of promising is often a dual one, in that many morally binding promises will also be legally binding, it is evident that each source, morality and the law, can be distinguished. Some promises considered morally binding are not enforced by the law. Such might include promises made in a social context, those reflecting duties of a family or religious nature, or those intended to have legal force but affected by some invalidating factor or want of proper form. More controversially, it might be argued that some legally enforceable promises are immoral, either because the nature of that which has been promised is exploitative of the promisor, for instance one who borrowed money at a high rate of interest, or because that which has been promised is to do something immoral albeit legal, such as the ­supply of weapons to a dubious though not proscribed government. The counter­ -argument might be put that, given that the law takes account of moral concerns through a policy that promises contra bonos mores are not enforceable, any promises which are enforceable must therefore be moral, but such an argument depends upon publicly accepted moral norms being objectively moral, a position which some would dispute.

If then, moral and legal norms can be distinguished, even if they often coincide, it is necessary to explore whether, and why, it is that the practice of promising is considered a moral act.

10The proper focus of the enquiry suggested here agrees with the view of MacCormick, ‘Voluntary Obligations and Normative Powers I’, p. 61.

(a)  Promising as moral, immoral, or amoral?

It may be useful to recall the suggested definition of a promise given in Chapter 1:

a statement by which one person commits to some future beneficial performance (or the beneficial withholding of a performance) in favour of another person.

In that a promise, under this definition, is intended to secure a beneficial performance for someone by giving that person a right to compel the pledged performance, it is often simply assumed, without considering the matter too closely, that promising must by its nature be a moral act. Such an assumption rests upon the view that the improvement of another’s position is a morally good act, either because, in the case of a unilateral promise, it is a liberal, benevolent action, or because, in the case of the making of a reciprocal promise, it is a mutually beneficial exercise. In either case, the improvement of the human condition is often assumed to be a morally good thing.

Such an assumption takes no account of the nature of the individual circumstances under which specific promises are made or are to be performed, including any possible change in such circumstances from those envisaged at the time the promise is made, such as whether performance of the promise might, inadvertently, make matters worse. It also takes no account of the actual motivation for which the promise was made, whether such was selfish, charitable, or liberal. The failure to consider such matters has been argued by some to be a weakness in the assertion that the making of promises must be an inherently moral act. A promise made from selfish motives might be argued to be immoral, if assessing the morality of an act is taken to include not just its external characteristics but also the subjective intent for which it was undertaken. A promise which, though beneficial when made, is, due to changing circumstances, harmful to the promisee or no longer desired by him, could likewise be argued to have become an immoral undertaking.

Concerns such as these have been thought by some to lead to the conclusion that the general practice of promising must necessarily be amoral, albeit that specific promises might be moral or immoral according to their circumstances.11 That conclusion reflects a situationist ethics view of

11For a view that promising is amoral, see Smith, ‘A Paradox of Promising’. Pratt, ’Promises, Contracts and Voluntary Obligations’, also appears to take an amoral view of promising,

human behaviour, and one that is therefore subject to the usual criticisms of situation ethics, principally that such an ethical view, in denying universally objective qualities of certain types of acts and in attacking the idea of fundamental qualities to types of human behaviour beyond individual actions, fails to take account of the reality that human practices, customs, and institutions (such as promising), are employed by societies precisely to permit people to engage in types of behaviour which are considered moral. It is, after all, types of act which are encouraged or forbidden by legislative authorities, rather than individual acts of particular human beings, demonstrating that it is such types of act or practices which are seen by those operating within moral systems as facilitating or hindering a moral life. Promising is one such practice, and its permissibility and encouragement in all human societies is properly seen as a sign that it is considered by such societies to be a moral practice or institution. It would seem then that the view that promising is amoral is flawed, in that it fails to consider the institution of promising as it exists and operates, focusing instead on specific acts of promise which are only possible because they are manifestations of the general practice of promising.

Though there is some body of opinion asserting that the practice of promising is amoral, it is rarer to find the view advanced that promising is by nature an immoral act. Though such a position is rare, it has its proponents. Fox and Demarco, for instance, have argued that promising is necessarily an immoral act, because to bind oneself to a certain future conduct without knowing what competing moral obligations might subsequently mitigate against performance of the pledged conduct is an abnegation of the responsibility we have to make moral choices according to the circumstances prevailing at the time when we are to act. They ask:

Can people justifiably obligate themselves, in advance, to keeping their promises, in the face of other possible moral obligations? We argue that they cannot. Promising is, as a rule, immoral: it is either an advance declaration of the intention to do the immoral under knowable or

arguing that the rule that we should adhere to promises is in fact ‘derivative’, ‘does no real moral work’, and therefore that it provides no assistance in answering the question of whether or not a promisor should adhere to a specific promise in the circumstances (p. 571). In trying to resolve that dilemma, argues Pratt, the promisor does not appeal to rules, because his case is ‘not one that has been decided before’ (p. 573), a classic situation ethics argument. See also McNeilly, ‘Promises De-Moralized’, who argues that for a practice of promising to exist it is not necessary to have the assent of most, or even any, members of society to the moral principle of promising. His argument is, however, largely detached from the actual world, and proceeds from discussion of an imaginary world and persons in it.

unknowable contingencies, or else it is a deceptive, and thereby immoral, offer of assurance.12

The principal concern of Fox and Demarco thus seems to be that it is immoral to bind oneself to do something in the future when doing that something may in the circumstances then prevailing infringe moral norms. Such a reckless commitment, as embodied in a promise, must therefore necessarily be an immoral act.

This concern is, in fact, not a new one. Many philosophers and jurists who have considered the nature of promising have raised the spectre of the promised act which may be harmful when the time for performance occurs. Plato considered the question in his Republic by reference to the example of a promise made to return weapons lent by an owner who had since become mad and might conceivably harm himself if he regained possession of them.13 Aristotle recognised that the dilemma necessarily led to the conclusion that not all promises should be honoured, if to adhere to a promise would lead to an unjust or unvirtuous result. In Aristotle’s view, human actions are directed towards the ultimate end of man, an end achievable through a virtuous life and virtuous practices. Promises are a means to that end, but, if keeping a promise no longer helps to achieve that end, because of changed circumstances, then keeping the promise would no longer be a virtuous thing to do. This does not mean that Aristotle can be described as a situation ethicist, for he was not; but it does indicate that a natural law approach to promising (of which, more later), under which it is deemed possible and desirable to make normative statements about types of human behaviour like promising, is not so rigid an approach as to require that adherence to every instance of a promise will be good. Promising can be seen as a morally good thing, but there may be other competing moral norms which can trump adherence to a promise in specific circumstances. An appreciation that this is so contradicts the view of Fox and Demarco that promising must be bad because one promises in the dark, so to speak, without knowing whether what one has promised may turn out to be undesirable and hence immoral in the circumstances.

In addition to the Fox and Demarco objection, others have objected to the idea that promising is moral on the ground that individual human

12Fox and Demarco, ‘The Immorality of Promising’ (1993), 81. Their theory was later expounded at greater length in Fox and Demarco, The Immorality of Promising (2001), and the passage quoted above is also found in that work at p. 69. For a response, see Mills, ‘The Morality of Promising Made in Good Faith’.

13Republic, 331c.