presumed from objective appearance), the entire content of a promise so intended need not necessarily be seen as deriving from subjective intention. On the contrary, some of the content of contracts may quite properly be externally and objectively imposed on contracting parties, on the basis of ‘good faith’, ‘trustworthiness’, or for some other compelling reason.109 This distinction between the existence of and the content of a contract can be used to provide a narrower field which will theory has to defend. Such a possible reformed will theory is discussed at the end of Chapter 3.

(iii)  The ‘contract theory’ of promising

With the advent of an increasingly sceptical and rational age, it became popular to dismiss the idea of objective morality, derived from the natural law or a divine creator, as superstitious and unscientific. Attempts were made to justify the morality of promises by reference to matters external to the act of promising itself. One such approach was to justify the morality of promising by reference to its congruity with the rules adopted by surrounding society, specifically by reference to the ‘social contract’ alleged to exist between the members of that society. This ‘social contract’ was said to be constituted by that tacit consent which all were deemed to give to modes of acceptable behaviour and conduct which would govern society and human actions. Those acts deemed under the social contract to be acceptable could be described as morally good, and those unacceptable to be morally reprehensible. It was society whose practices and whose members’ agreement were to determine the moral quality of actions. As promising had been agreed by societies everywhere to be an acceptable and desirable form of human conduct, the practice of promising thus constituted a moral one.110

While the contract theory of promises has had a number of variations to it, two main sub-types of the theory have attracted the names contractarianism and contractualism. The central thesis of contractarianism was espoused by Hobbes in Leviathan.111 Contractarians, like all social contract theorists, see the duty to adhere to promises as rooted in the social contract. Additionally, they place great stress in the view that it is rational to adhere to promises, and that it is this rationality which leads individuals to realise that it is right to adhere to specific promises made by them.

109See, for the advocacy of such an idea in German law, Bechmann, Der Kauf nach gemeinem Recht, ii, §120.

110See further Darwall, Contractarianism/Contractualism.

111See Hobbes, Leviathan, xiii–xv.

Reason leads people to understand that adherence to promises facilitates trust between members of society, which in turn leads to human endeavour being realised through commerce and other human interaction. While Hobbes describes adherence to covenants as a ‘law of nature’, such natural law is not of the type espoused by Aristotle and Aquinas, but rather signifies the ‘dictates of reason’.112 However, because man’s reason is often overtaken by his passion, something more is needed to give promises force, and that is the fear of punishment by the sovereign power if promises are not adhered to. This fear is a rational fear, says Hobbes: it cannot be rational to break a promise, given that the sovereign will punish such breaches.113 This seems a somewhat naive view, however, if one considers that in some cases the punishment for breach may be less than the gain to be made by breach, if breach allows a pledged performance to be used more efficiently and profitably elsewhere. In such cases, reason might be thought to argue in favour of breach, despite Hobbes’s assertion that that can never be so. Moreover, there are cases where a party may, for reasons of principle, break a promise knowing that punishment will be meted out. The decision to break a promise in such a case would seem to have nothing to do with reason, but rather with an emotive attachment to a principle. Despite such difficulties, contractarianism continues to attract modern advocates.114

As for the other major strand of the social contract approach to the morality of promises, contractualism, a notable modern advocate has been John Rawls. Rawls sees the duty to adhere to promises as a matter of justice, the various principles of justice having been determined by the agreement of the members of society. Promise is a type of what is styled ‘institutional obligation’, as it is an obligation governed by certain rules which determine the nature of the institution. In particular, the institution of promise is founded upon a constitutive rule that promises must be kept. This constitutive rule derives from the general moral principle of fairness, a principle agreed upon by members of society which holds that we are not entitled to gain from others without doing our fair share in return.115 Thus, someone who accepts the benefits of a promise must in turn do his fair share by keeping his promises. In addition to the principle of fairness, a derivative of this principle, the principle of fidelity, further mandates adherence to promises.116 What this theory states is thus

112 Ibid., xv. 113 Ibid.

114See Gauthier, Morals by Agreement; Narveson, The Libertarian Idea.

115Rawls, A Theory of Justice, p. 112.

116The principle of fidelity states that bona fide promises are to be kept: ibid., p. 347.

that the duty to adhere to promises is not itself a fundamental moral principle: rather it is a duty founded upon a convention, the convention deriving from a fundamental moral principle (fairness, and its derivative fidelity).117

A notable criticism of contractualism as an explanation for the moral force of promises has been that the original principles of justice referred to by Rawls can themselves be described as coming into force only as the result of members of society promising to uphold them. But if that is so, then the institution of promising only has moral force because of promises that that should be so: but in what do these founding promises find their moral force? There seems to be a circularity here, as Robbins has pointed out.118 Another objection is that it would be very difficult, if not impossible, in a modern world where societies are becoming increasingly pluralistic, to identify any fundamental principles of justice upon which we would all agree, or which none of us would reasonably reject,119 although it has been suggested that one such is the ‘rescue principle’ (which states that, if a slight or moderate sacrifice would prevent serious harm to another, we should make such a sacrifice).120 It does not, however, seem to be self-evidently the case that such a principle is more likely to find universal acceptance than the principle that ‘promises should be honoured’; after all, all legal systems enforce promises to some extent, whereas not all impose a duty to go to the aid of those in danger.

(iv)  Consequentialism (utilitarianism)

A further theory of the source of the morality of promising is that of ­consequentialism, or utilitarianism as it is also known. On this view, promising is a moral practice because it generates trust, reliance, confidence, happiness, economic security, or other good consequences. It is therefore useful to society’s functioning and the well-being of its members, as Hume argued when he observed that promises are ‘artificial contrivances for the convenience and advantage of society’.121 While the natural law and will approaches to promising also recognise such beneficial effects of promising, the consequentialist argues that it is only by

117A variation of contemporary contractualism is also espoused in Scanlon, What We Owe to Each Other.

118Robbins, Promising, Intending, and Moral Autonomy, p. 128.

119See Nagel, Equality and Partiality. The difference between seeking principles which either we could all agree on, or else which none of us would reasonably reject, is a ­distinction between Rawls’s and Scanlon’s versions of contractualism.

120Scanlon, What We Owe to Each Other, p. 224.

121Hume, Treatise of Human Nature, III.ii.5.

virtue of these effects that one may define promising as morally good. Utilitarian accounts of the morality of promising can overlap to some extent with the contract theory of promising just discussed, as part of the explanation provided by both of these types of theory relates to the effect that promising has in supporting the trust which is a foundation of the social contract.122

As with the contract theory of promising, consequentialist theorists fall in to two principal classes: rule utilitarians and act utilitarians. Rule utilitarians assess the utility of specified rules or practices, for instance the rule that promises should be honoured, while act utilitarians seek to evaluate the utility of specific human acts, the focus of the enquiry thus resting upon the effect produced by a specific act (such as a promise), whether that be a net good or bad effect. A rule utilitarian therefore, having concluded that promises should be kept as this maximises societal well-being in general, would argue for a rule that all promises should be kept; an act utilitarian would permit individual promises to be kept or broken depending on the likely outcome on well-being in the particular case. So, if a promisor were reasonably to conclude that breaking a specific promise would now be productive of more happiness (or greater economic benefit, or whatever other good effect is argued to be the desired outcome) than honouring it, he would be morally released from any duty to perform the promise.

Whether a real division between act and rule utilitarianism really exists has been doubted by some, who argue that rule utilitarians are compelled to accept the need for sub-rules, and then sub-sub-rules, leading in the end to such highly particularised rules that one arrives at the position of act utilitarians.123 Whether or not this criticism is valid, the utilitarian approach in general is open to a number of criticisms.

First, utilitarianism struggles to explain why a promise is said to be binding (a commonly adopted view) even if it would, all things considered, be better to break the promise. This is a criticism which really only bites against rule utilitarians, as the act utilitarian’s answer is simply that such a promise is not binding. This response, however, triggers the further more generalised criticism of utilitarianism, that it leads to unpredictable and uncertain results, for promisors and promisees will never know which promises are binding unless and until a weighing up of the effect of

122Narveson, for instance, advances an argument about promising which is both utilitarian and contractarian in nature (see Narveson, ‘Promising, Expecting, and Utility’).

123See Lyons, Forms and Limits of Utilitarianism.

the promise (to be carried out by whom, it might be asked) is undertaken. Such uncertainty is not conducive to the efficient working of society, or to the predictability for individuals of their own affairs.

Second, utilitarianism’s definition of that which is good as that which maximises human happiness (or well-being, or whatever other good outcome by which the utilitarian chooses to judge morality) seems essentially arbitrary and subjective. One might plausibly choose some other equally reasonable criterion as the qualifier of a ‘good’ action. It is far from clear that ‘happiness’ or ‘well-being’ would be agreed upon by everyone as the relevant criterion upon which to build a definition of morality, given that such ideas are essentially subjective perceptions.

Third, utilitarianism presupposes that people act in the interests of the general well-being. In fact, it can just as plausibly be argued that people act in the interests of a more restricted group, whether it be their circle of family and friends, or their town, or institutions to which they belong. Thus, where promises are kept, it is just as consistent to say that the promisor sees an advantage to a specific class or group in so doing, rather than a benefit to society as a whole; and, where promises are broken, it is just as consistent to say that it is because the promisor perceives an advantage to a member of the specific class in so doing, not an advantage to the common good.

Fourth, utilitarianism opens up the danger of people being held to statements which they never intended to be binding on them. If A says something, and B acts upon it thinking that it will produce a beneficial result for him, then such a circumstance can be argued to give rise to promissory liability on A’s part, whether or not the statement was intended as a promise, simply on the basis that it might maximise B’s happiness or well-being. If such an outcome were to prevail, then freedom not to promise or to contract would be seriously undermined.

Fifth, by favouring the maximisation of happiness or well-being over the certainty of the promisee’s entitlement, in whatever circumstances, utilitarianism favours a mere subjective arithmetic calculation of happiness over the interests of justice, trustworthiness, and certainty. Such an approach falls into the trap of assuming that it is better for A to judge what is best for B’s happiness than it is for B (who has decided that his happiness is best served by the promise in his favour). In so doing, it diminishes the worth of others’ decisions and patronises them. It, moreover, assumes that relative values can be given to ‘amounts’ of well-being and happiness, which hardly seems to be the case, unless perhaps one is dealing with ­economic well-being to which a specific monetary value can be given.