effect they have upon surrounding society, particularly, for instance, in the happiness they produce, or in the utility that they offer to the functioning of that society or of more specific interests such as commerce. For positivists, the moral quality to behaviour is thus relative. A frequent criticism of such positivists is that, bearing in mind that all theories of law have to accept the reality that not all promises are held to be binding, natural law’s explanation for not upholding all promises – based upon the idea of implied conditions deemed to affect promises – is unconvincing.86 This, however, is not a wholly accurate criticism, as the natural law tradition does not rely solely upon the idea of implied conditions to explain invalid promises: in addition, natural lawyers have used the concept of the just or appropriate causa required to support promises and contracts, they have considered whether consent has truly been given in specific circumstances, and have had regard as well to external considerations of justice (for instance in relation to the just price of a contract).

A third line of attack on the virtue/natural law foundations of the morality of promising focuses on theistic conceptions of natural law: it is thus an attack on the religious basis of the moral worth of promises. The criticism is that canonical and scriptural texts cannot prove the inherent morality of promising, given that they presuppose but cannot demonstrate a specific theistic belief, a belief which is rejected as unjustifiable.87 There is little that can be said of this criticism, save that one either accepts its sceptical, humanist premise, or rejects it and, in so rejecting it, affirms the value and place of the insights about human nature and the moral quality of human actions such as promising which is provided by canonical and scriptural sources. Admittedly, however, even those who do accept these insights are often slow at advocating them in an avowedly secular age.

(ii)  Promising as an act of the will: respect for personal autonomy

One of the great themes of obligations theory in the western legal tradition, both from a moral and legal standpoint, has been the view that promises (and thus the contracts formed by an exchange of promises) are acts of the human will.88 Such a conception opens up a second approach

86This attack is advanced by Atiyah in Promises, Morals and Law, pp. 22–4.

87An interesting recent philosophical study of whether it is justifiable to commit oneself ‘by faith’ to a religious claim when its truth appears to lack adequate evidentiary support is Bishop, Believing by Faith.

88On the will in the law, see Pound, ‘The Role of the Will in Law’.

to viewing the act of promising as moral, by positing that, as a function of the human will, promising is moral because it is the free choice of an autonomous moral being, worthy of respect as such, to create or subject himself to an obligation.89 A promise can thus be said to embody a moral principle forged by such a moral being about what it is right to do. As Raz put it:

What one ought to do depends in part on oneself, and this is not just because the behaviour, needs, tastes, and desires of the agent count just as much as those of any other person, but because the agent has the power intentionally to shape the form of his moral world, to obligate himself to follow certain goals, or to create bonds and alliances with certain people and not others.90

The rise to prominence of the will theory as a means of explaining the force of promises, and hence of contract, is often ascribed to nineteenthcentury legal and moral thought.91 This development, it is said, took the idea of the will, which had already been a feature of contract law prior to this point, and gave to it the pre-eminent position in the philosophical and moral explanation of the force of promises and contracts.92 As will be seen when considering the other theories of promise discussed later in this chapter, the counter-attacks on the idea of the will as the explanatory moral force behind promise and contract has left the theory somewhat battered but not, it will be suggested, dethroned from its position as the standard modern explanation for the moral and legal force of promises.

It should be noted that there are different strands of will theory. One view posits the will itself as the source of the obligation created, whether it be of promise or of some other type, and so conceives of the moral agent as endued with normative power. By that agent’s willing to make a promise, the agent thereby wills a moral obligation in to being. On such a view, the promissory obligation is seen as having both its source and force (moral

89‘According to the classical view, the law of contract gives expression to and protects the will of the parties, for the will is something inherently worthy of respect’ (Cohen, ‘The Basis of Contract’, 575).

92‘Logically central to Will Theory was the idea that contractual liability depended on the voluntary, intentional, act of the parties. There was nothing new in this; it was an idea that had been familiar to Common lawyers for at least half a millennium. What was new was the greater depth given to the idea, and the greater weight placed on it’ (Ibbetson, Historical Introduction, p. 232). The nineteenth-century timescale suggested is doubtless true of the Common law, though arguably the will had already played a more prominent position in the legal theory of some non-Common law systems before this point, a matter explored in more detail in the next chapter.

as well as legal) in the act of the human will. A slightly different strain of will theory sees the promisor as merely, in making the promise, expressing a consent to be bound in law to an obligation, the difference being that, while on this view the consent of the promisor remains an act of the will, the source and the force of the promissory duty is found not in that act of will but in the law’s imposition of the duty in response to the freely given consent of the promisor.93 On this view, the promisor wills undertaking a legal obligation, but the obligation has its source in the normative power of the legal system. This may seem a neat distinction, depending on the moot point of whether it is better to see the law as allowing individuals to create obligations by their actions or whether the law permits them voluntarily to submit themselves to externally imposed obligations, but it is a distinction which often makes a difference to the question of whether or not objections to will theory strike home (as the discussion of Hume’s views below will indicate). Both of these strands of will theory suggest that the act of promising is moral, though in the case of the latter strand the moral nature of the promise need not simply rest on the idea that it is the free choice of a moral being, but can further be said to lie in the fact that, as the law will only ever impose moral and not immoral duties upon a promisor, any promise which has legal effect through such imposition must necessarily be a moral one.94

The will theory of the moral force of promises is the foundation of a number of more specialised theories of contract law. Theories of contract based upon the idea of an agreement95 or the idea of a bargain96 are both

93Coote’s theory of contract as assumption might be classified in these terms. He sees contract as stemming from an expression of the parties’ will, made manifest in their promises, to submit to the imposition of contractual duties upon them (an assumption of contractual duty). His theory thus contains elements of promise, will and intention to contract, but it ultimately rests upon the basis that the law permits voluntary assumption of duty in some cases: see further Coote, Contract as Assumption, Ch. 2.

94This, of course, presupposes a belief in the view that obligations imposed by a sovereign normative power upon a promisor will necessarily be moral, a view which would not be universally accepted given that sovereign normative powers appear not to be universally morally good.

95Thus Peel, Treitel on Contract, has contract as ‘an agreement giving rise to obligations which are enforceable or recognised by law’ (para. 1–001), this definition being almost verbatim the definition adopted in early editions of Chitty (the newest editions of Chitty discuss definitions both in terms of promise and agreement, without definitively settling for either).

96The bargain theory has, as an essential component, not just the idea of the will but of exchange, and is thus a theory peculiarly designed to explain the Common law idea of quid pro quo or consideration, as it later became. Furmston, Cheshire, Fifoot and

dependent upon will theory, given that the will, as the faculty of human decision-making, is self-evidently the seat of the ability of human beings to agree or to bargain with others. If the concept of the will is attacked as unable to explain why promises are enforced, then logically agreement or bargain theories of contract must necessarily fall with it.

There are a number of common criticisms of the will theory of the moral force of promises. First, given that human beings can choose freely to do that which is immoral, a promise might conceivably be used as a vehicle for implementing just such an immoral choice. Such a promise would seem logically to be as immoral as the choice prompting it. This problem can be argued, however, to relate only to specific promises, and not promising as an institution. Despite individual bad choices and thus bad promises, promising as an institution remains moral because, taken as a whole, the practice of promising is supportive of the autonomy of moral beings capable of undertaking moral choices. Even were this defence not to be accepted, then it might yet be conceded that at least those individual promises reflecting good choices must be recognised as moral

More fundamentally, one might choose to challenge the idea that there is such a thing as free will, and thus the idea that promise is based upon an exercise of such free will. Scientific views about the nature of causality since the Enlightenment have led some to adopt a sceptical view of free will for the reason that, it is said, science has shown the universe to be essentially deterministic.97 What appears to be a freely made choice, whether it be a promise or some other human act, is in reality determined by the factors preceding it and not the human will. On such a view, a promise is neither moral nor immoral, for human beings are no longer seen as moral agents capable of making moral decisions. However, adherence to such a view depends crucially on a belief in an entirely deterministic universe, a controversial belief within the scientific community.

A slightly less sceptical view of free will, though one which nonetheless rejects any relationship between the will and promising, is represented in David Hume’s view that the human will can only have a causal effect

Furmston, refers (p. 37) to ‘the idea of bargain, fundamental to the English conception of contract’, noting that, because this idea is absent in obligations undertaken by way of deed, such obligations should not properly be considered as contract. Such a view seems entirely logical if the essence of contract is located in bargain or agreement: the contract by way of deed is essentially a unilateral promise (much like the Scots unilateral promise), put into a required form, rather than such a bargain or agreement.

97Views differ on this point, however. The apparent unpredictability of the decay of uran­ ium-238 atoms, for instance, would appear to indicate that at least some things are not determinable (at least from a human perspective).

A second comment on Hume’s position is that, in order to reject the view that promising is an essential feature of human nature, he somewhat unsettlingly rejects the social nature of human beings, portraying them as essentially isolated and self-concerned beings (humans are ‘naturally selfish’ in Hume’s conception)101 rather than as naturally cooperative creatures. Yet it is this latter conception of the human species which many would say represents a more accurate anthropological critique of human nature. And, if we are indeed cooperative and not isolated by nature, it is not hard to see a promise-making disposition as an inherent part of that cooperative nature: as Hume’s contemporary Lord Kames put it when considering promises, ‘[a]s man is framed for society, mutual trust and confidence, without which there can be no useful society, enter into the character of the human species’.102

Thirdly, a substantial concern for Hume is that the theory that the human will can give rise to binding obligations would seem, Hume asserts, to allow people to turn that which is immoral (or indeed amoral) into a moral action simply by promising to do the act, which forces Hume to question whether morality can really be so subjective as to allow this.103 Such a concern can be refuted through rejecting Hume’s premise: promissory theorists do not assert, as Hume suggests, that promising can turn what was an immoral into a moral act. All that the promising does is to turn an act which was not the object of a moral duty into such an object, thereby creating a moral imperative or duty where there was none before. So Hume’s objection is based on a false premise; promises do not undermine the objective moral or immoral nature of acts. A cruel father who neglects the care of his child by binding himself to give all his money away to a stranger would still be acting immorally in spite of his promise, and the fact that he has bound himself to give his wealth to another merely creates a duty to that party without affecting the nature of his conduct towards his child.

As a final comment on Hume’s position, from a legal realist perspective Hume’s view that human beings cannot bind themselves to an obligation by an act of the will suffers from comparison with the reality of what actually occurs in moral and legal systems, which do conceive of the human will as exercising normative power (whether primary or devolved) and

101 Hume, Treatise of Human Nature, III.ii.5. 102 Kames, Essays on Morality, II.vi.

103Hume asserts that we cannot ‘by a single act of our will, that is, by a promise, render any action agreeable or disagreeable, moral or immoral; which, without that act, wou’d have produc’d contrary impressions, or have been endow’d with different qualities’ (Treatise of Human Nature, III.ii.5).

do assert that obligations may be constituted simply by a voluntary act of such will.104 That being the reality, it seems somewhat futile to argue that this is inconsistent with legal philosophy.

A further and significant attack on the moral nature of promises as acts of the human will has been said to lie in the fact that it is not, in fact, the actual, subjective intentions of promisors which are usually (if ever) given effect to, but rather the objectively manifested indication of such intentions, the words or behaviour of the promisor as manifested to the reasonable promisee or to the reasonable third party observer.105 If therefore, it is said, it is not the actual will of the promisor which creates a promise, then such act of will cannot be the source of the moral (or indeed legal) authority of the promise. Such ‘objectivist’ objections have been raised both in the Common law106 as well as civilian jurisprudence.107 The subjective/objective debate is one of the hardest fought in the law but, at least in the field of promise and contract, middle ground is possible. Such middle ground may be found in a number of ways. First, as discussed in Chapter 1, if one accepts the practical reality that internal thought processes, such as acts of the will, can only ever (short of the invention of mind reading technology) be judged objectively,108 then it seems reasonable to assert that, in general, the human will is best defined and characterised in its objective, external form. Second, however, one can concede, as some will theorists have done (and as seems reasonable), that while a subjective intention to make a promise at all should be considered necessary (even if, in the absence of an error-based challenge, such intention is usually

104As Cohen put it, on the question of taking account of the moral realities of the world around us: ‘If, then, we find ourselves in a state of society in which men are, as a matter of fact, repelled by the breaking of promises and feel that such practice should be discouraged or minimized, that is a primary fact which the law must not ignore’ (Cohen, ‘The Basis of Contract’, 572; Law and Social Order, p. 90).

105There has been a lively debate in many legal systems as to whether taking an objective perspective of a party’s conduct means the perspective of an entirely detached, disinterested, third party observer (what can figuratively be called ‘fly-on-the-wall objectivity’) or whether it means the perspective of a reasonable party in the shoes of the other party to the transaction (what can be called ‘objective subjectivity’, given that it is an attempt to bring a reasonable perspective to the other subject of the contract): for some interesting discussion in the Common law tradition, see Howarth, ‘Objectivity in Contract’; Vorster, ‘A Comment on the Meaning of Objectivity in Contract’. The DCFR takes the ‘objective subjective’ approach that it is how words or conduct were ‘reasonably understood by the person to whom [they are] addressed’ which counts: see Art. II.-4:302.

106In the USA, in the writings of Holmes and Williston, for instance.

107In Germany, in the writings of Schlossmann and Kohler, for instance.

108A practical approach which essentially constitutes the view of Pollock.