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Учебный год 22-23 / Promises and Contract Law - Comparative Perspectives.pdf
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Promises as Obligations: Morality and Law

67

beings ought not to be permitted to create obligations, whether moral or legal, simply through a declaration that they pledge to do something. From a moral point of view, the objection is that such a power both deprives the community of the right to decide those duties which ought or ought not to be undertaken, and is thus a usurpation of the function of the proper law-making organs, as well as being open to abuse by those who wish to distort just allocations of resources through selfish acts. In short, the tolerance of individual determination of resources which promising allows is deemed immoral. Can the morality of promising be defended against such a criticism? It is true that the institution of promise-making has been described as allowing people to, as it were, make laws for themselves,14 and so to bind themselves where they were not bound before. Such a power is, however, subject to control by moral and legal systems, so that unlawful promises or those contra bonos mores are not recognised as validly made, this illustrating that ultimately the promisor is bound because it is the moral or legal system that determines that he is so bound, not because he is himself a being capable of determining moral norms. So, it is the moral being’s operating within the system which binds the promisor, not the promisor himself, this negating the argument that promising usurps rightful normative authority. It remains true, however, that the law does indeed permit individuals to trigger, through promising, the binding effect of a moral norm, and thereby to allocate resources as they see fit. Such a liberty can surely, however, only be subject to a blanket objection from a position which utterly negates the worth of individual autonomy and the respect due to it. Anyone with a concern for personal autonomy and the individual’s right to dispose of his property and services will find nothing in principle objectionable about the ability to promise and thereby bind oneself to an allocation of such property and services, even if some regulation of this power may be deemed desirable.

If the views that promising is necessarily immoral or amoral both seem flawed, that still leaves competing theories as to why promising is a moral practice. These competing theories require examination.

(b)  Source of the morality of the practice of promising

A multitude of theories concerning the moral force of promising have been advanced from the classical period down to the present day. Such

14  See Aquinas, Summa Theologica, II-II, Q. 88, Art. 10.