The paper argues that promise rights presuppose independently existing (if not pre-existing) claims. The argument relies on the Bifurcation Thesis, according to which all claims, and all rights, can be exhaustively divided into two categories: capacity based and exercise based.

This paper contains an analysis of performatives with special attention to performatives in the law. It deals with the possibility to recognise performativity by means of a grammatical-syntactic criterion, the self-verifying and norm-promulgating character of legal performatives, an analysis of the effects of performatives by means of causal logic, the different forms of performativity and a theory of promise-performatives.

Chapter Promising in Law and Morals Promissory and contractual obligations raise many issues of common interest to philosophers and lawyers. ...

Can two promises add up to an agreement? Not according to Margaret Gilbert. 1 She has forcefully challenged the orthodox view that an agreement is an exchange of promises. She works through an intricate series of examples of promise-exchanges and argues that none qualifies as an agreement. Assuming that she has not overlooked any plausible candidates, she concludes that agreements are essentially different. It seems, however, that her examples are all exchanges of promises only in an attenuated sense of "exchange." (...) I propose to defend the orthodox view by considering what it is for promises to be exchanged in a fuller sense and what sorts of promises thus exchanged can comprise an agreement. (shrink)

A continuing issue of contract law is what purported contracts should be legally enforced. This article considers what principles rational persons would want courts to use in enforcing commitments in a society in which they expected to live. By reviewing the promise, economic value, and reasonable expectations approaches, the principles of freedom of transfer, enforceable commitments, and collective good are developed. Then, less general principles of consideration, past benefits, reliance, gratuitous commitments, and contract modification are presented. These latter principles specify (...) the more general principle of legally enforceable commitments. The resulting set of principles provide the basic outlines of legally enforceable commitments that would be acceptable to rational persons living in a contemporary, industrialized Western common-law society. (shrink)

Conditional promises and threats are speech acts that are used to manipulate other people's behaviour. Studies on human reasoning typically use propositional logic to analyse what people infer from such inducements. While this approach is sufficient to uncover conceptual features of inducements, it fails to explain them. To overcome this limitation, we propose a multilevel analysis integrating motivational, linguistic, deontic, behavioural, and emotional aspects. Commonalities and differences between conditional promises and threats on various levels were examined in two experiments. The (...) first shows that both types of inducements are understood as being complementary on the linguistic level, but not reversible, due to the specific temporal order of their actions. In addition, it gives a first assessment of emotional reactions. The second experiment investigated the novel question of whether complementary promises and threats, despite semantic differences, both imply an obligation to cooperate on the deontic level. The data corroborate this hypothesis, and they support various appraisal-theoretical assumptions on the elicitation of emotions. They also reveal that content affects not only the attribution of emotions, but also the deontic interpretation. (shrink)

There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This article (...) considers one facet of this debate: evaluating the relevance of the fact that the remedies available for breach of contract can vary significantly from one jurisdiction to another. This wide variation in remedies for breach of a (contractual) promise is one central difference between promises in morality and enforceable agreements in law. The article asserts that variation of remedies strongly supports the conclusion that there is (and can be) no general, universal theory of Contract Law. (shrink)

Wedding vows seem to be promises. So they go: I promise to love, honour, and cherish .... But this poses a problem. Divorce is not widely seen as a serious moral wrong, but breaking a promise is. I first consider, and defend against preliminary objections, a ‘hard-line’ response: divorce is indeed prima facie impermissible promise-breaking. I next consider the ‘hardship’ response—the hardship of failed marriages overrides the prima facie duty to keep promises. However, this would release promisors in far too (...) many cases. I resolve the triad by considering the content of the vows. Vows concerning love are not promises at all. We cannot promise to do acts the performance of which is outside our control, and love involves states of mind outside our control. Vows concerning spousal roles are complicated by diverse social understandings of marriage and the centrality of emotion to the roles. (shrink)

Introduction -- Practical reasons and judicial use of force -- Deviating from legal standards -- The legal duties of judges -- The normative classification of legal results -- Reasons to deviate -- Adherence rules -- Obeying adherence rules -- The judicial oath -- Legal duty and political obligation -- Systemic effects -- Agent-relative principles -- Optimal adherence rules -- Guidance rules -- Treating like cases alike -- Implementation -- Theoretical implications -- Conclusion.

This essay recounts a fascinating if complicated piece of Anglo-American debate. My aim is to reach a conclusion about the importance of the notion of changing one's normative position as part of the act of giving sufficient consideration for a legal contract. In several journals and textbooks between 1894 and 1918 the major contract scholars of the time, e.g., Langdell, Anson, Pollock, Williston, Ames, and Corbin, discussed a special example which was thought to reveal a paradox in the common law (...) of consideration. The problem had shown itself in the textbooks of Pollock in England and Langdell in the United States. The example is of two contracts made by three persons in which one contract with the third party repeats the content of an existing contract with the second party. It would appear that the party at the pivot experiences no new detriment in merely performing, or promising to perform, his pre-existing duty. If so, such oblique contracts with third parties must fail for want of consideration extended from the first party. About this difficulty the experts were anything but agreed. The cases were not consistent. At the root of this uncertainty is an ambivalence about the concept of consideration itself. Should it be conceived in terms of normative relations and changes of moral position or should it be conceived in valuative terms, as harms and benefits? The differences of opinion about the legal validity of oblique contracts is explained by this ambiguity, one which the common lawyer has not yet resolved. (shrink)

An important test of any moral theory is whether it can give a satisfactory account of moral prohibitions such as those against promise breaking and lying. Act-utilitarianism (hereafter utilitarianism) implies that any act can be justified if it results in the best consequences. Utilitarianism implies that it is sometimes morally right to break promises and tell lies. Few people find this result to be counterintuitive and very few are persuaded by Kant’s arguments that attempt to show that lying is always (...) wrong, even if it is necessary to save someone’s life. One thing that makes Kant’s view about lying so implausible is that he is committed to the view that the duty not to lie is always more important than any conflicting duties. Even if we agree with utilitarianism that lying and promise breaking are sometimes morally permissible, we may still be inclined to think that utilitarianism is too permissive about lying and promise breaking. Ross gives the definitive statement of this criticism. He holds that there is a strong, but overrridable, moral presumption against telling lies and breaking promises that is independent of utilitarian considerations. Almost all utilitarians claim that there is a strong moral presumption against telling lies and breaking promises on account of the direct and indirect bad consequences of those actions. However, utilitarians cannot say that there is any moral presumption against lying and promise breaking that is independent of their bad consequences. Many philosophers think that Ross’s theory constitutes a kind of reasonable middle ground in ethics between Kant’s absolutism and utilitarianism. Ross’s theory is arguably the major ethical theory that is closest to most people’s commonsense moral beliefs. It is noteworthy that the two most important defenders of rule-utilitarianism/rule-consequentialism. (shrink)

T.M. Scanlon (1998) proposes that promise breaking is wrong because it shows manipulative disregard for the expectations for future behavior created by promising. I argue that this account of promissory obligation is mistaken in it own right, as well as being at odds with Scanlon's contractualism. I begin by placing Scanlon's account of promising within a tradition that treats the creation of expectations in promise recipients as central to promissory obligation. However, a counterexample to Scanlon's account, his case of the (...) "Profligate Pal," will show that this view of promissory obligation, which I call the Expectations View, is incorrect. In its place, I propose an account of promissory obligation I call Promising as Accountability, according to which promising is a way of making oneself accountable to others for a future act. Not only is Promising as Accountability a more defensible approach to promissory obligation, it also better fits with certain general features of Scanlon's contractualism. (shrink)

: Hume's account of the virtue of fidelity to promises contains two surprising claims: 1) Any analysis of fidelity that treats it as a natural (nonconventional) virtue is incorrect because it entails that in promising we perform a "peculiar act of the mind," an act of creating obligation by willing oneself to be obligated. No such act is possible. 2) Though the obligation of promises depends upon social convention, not on such a mental act, we nonetheless "feign" that whenever someone (...) promises he performs such an act. This paper explains both in light of the philosophical questions about promising that lie behind Hume's investigation, his virtue theory, and the general difficulties he believes we face trying to understand virtues that are in fact artificial in terms of our common-sense, natural conception of virtue. It extracts a lesson for contemporary virtue ethics about the motive of duty. (shrink)

This essay makes a number of distinctions between the motives of love and of duty, and argues that ideally they act in concert so as to generate constancy in loving relations. The essay revolves around a case in which a husband or wife is tempted to infidelity. It is argued that resistance to the temptation is optimally grounded in love for the spouse rather than simply in a duty to resist initiated perhaps through promise or vow. This is not, however, (...) to undermine altogether the significance of promises of this sort; it is rather to put a proper emphasis on the sentiment of love as an effective spring to action and to suggest that the sentiment itself ideally brings a past promise or vow of fidelity into present relief in a choice situation. (shrink)

This paper begins with the idea that we can learn a good deal about promising by examining the conditions and norms that govern promise- breaking. Sometimes promises are broken as a deliberate plan, other times they are broken because they are simply incompatible with other, more signifi cant moral norms, or because it becomes clear that they are impossible to keep. There are cases where people make promises that are actually incompatible with each other. Politicians, for example, often give such (...) incompatible promises, either intentionally, or by making too many commitments, some of which turn out to be incompatible. In making such promises, agents guarantee that at least one promise be broken. Is the agent who makes incompatible promises under any obli- gation? If ‘ought’ implies ‘can,’ and promises entail obligations, then it seems that one cannot, in fact, make promises one cannot keep. This paper explores the problem by drawing analogies between incompatible promises and other promises that cannot be kept. It suggests that we can deny ‘ought’ implies ‘can’ strictly speaking, but recognize that there is a practical limit on what the agent can be called on to do. On this view, even promises to do the impossible commit the agent. Similarly, politi- cians who promise too much are still obligated to do as promised. (shrink)

In this article we develop and defend what we call the “Trust View” of promissory obligation, according to which making a promise involves inviting another individual to trust one to do something. In inviting her trust, and having the invitation accepted (or at least not rejected), one incurs an obligation to her not to betray the trust that one has invited. The distinctive wrong involved in breaking a promise is a matter of violating this obligation. We begin by explicating the (...) core notion of “inviting someone to trust one to do something”, suggesting that it involves signaling to the other individual one's recognition of the importance the relevant action has for her, and one’s willingness to license her to have faith or optimism in one's character with regard to the performance of that action. We then turn to a defense of the Trust View, arguing that it has considerable appeal in its own right, that it is distinct from and superior to three similar accounts (T.M. Scanlon's Assurance View, Judith Jarvis Thomson's Reliance View and David Owens' Authority View), and that several objections to it can be answered. (shrink)

This paper challenges the common assumption that an agreement is an exchange of promises. Proposing that the performance obligations of some typical agreements are simultaneous, interdependent, and unconditional, it argues that no promise-exchange has this structure of obligations. In addition to offering general considerations in support of this claim, it examines various types of promise-exchange, showing that none satisfy the criteria noted. Two forms of conditional promise are distinguished and both forms are discussed. A positive account of agreements as joint (...) decisions founded in a joint commitment is sketched. It is argued that the example agreements represent especially clearly the normative structure of social union. (shrink)

This article offers a critique of Thomas Scanlon's well-known account of promissory obligation by reference to the rights of promisees. Scanlon's account invokes a moral principle, the "principle of fidelity". Now, corresponding to a promisor's obligation to perform is a promisee's right to performance. It is argued that one cannot account for this right in terms of Scanlon's principle. This is so in spite of a clause in the principle relating to the promisee's "consent", which might have been thought to (...) do the trick. Most likely this argument can be applied to all "moral principle" accounts of promissory obligation. An alternative both to these and to "social practice" accounts is needed. (shrink)

Previous assurance-theoretic treatments of testimony have not adequately explained how the transmission of warrant depends specifically on the speaker’s mode of address – making it natural to suspect that the interpersonal element is not epistemic but merely psychological or action-theoretic. I aim to fill that explanatory gap: to specify exactly how a testifier’s assurance can create genuine epistemic warrant. In doing so I explain (a) how the illocutionary norm governing the speech act proscribes not lies but a species of bullshit, (...) in an extension of Harry Frankfurt’s sense, (b) how that norm makes testimony fully second-personal, in Stephen Darwall’s sense, or bipolar, in Michael Thompson’s sense, and (c) how that species of second-personality or bipolarity is more fundamental than the practical species that Darwall and Thompson discuss. One attraction of this new Assurance View of testimony is that it allows us to reconceptualize the natures of normativity and responsibility more generally, viewing the assurance as implicating us in normative relations of recognition, and therefore of justice, that are not yet moralized with reactive attitudes. (shrink)

Practical commitment is Janus-faced, looking outward toward the expectations it creates and inward toward their basis in the agent’s will. This paper criticizes Kantian attempts to link these facets and proposes an alternative. Contra David Velleman, the availability of a conspiratorial perspective (not yours, not your interlocutor’s) is what allows you to understand yourself as making a lying promise – as committing yourself ‘outwardly’ with the deceptive reasoning that Velleman argues cannot provide a basis for self-understanding. Moreover, the intrapersonal availability (...) of such a third perspective is what enables you to commit yourself ‘inwardly.’ Here I offer an alternative to Christine Korsgaard’s account of practical commitment, on which committing yourself requires identifying yourself with a principle. You needn’t identify yourself with a principle, I argue, because the unity at which you aim when you commit yourself is a unity not with your acting self but with a later perspective, where the relation is one of self-intelligibility, not self-justification, and therefore needn’t be mediated by principles. This ‘twice-future’ perspective – neither your present intending nor your (once-)future acting but a third perspective that looks back on that relation – plays the intrapersonal role played in interpersonal commitment by potential co-conspirators. Kantians are therefore right to link your ability to commit yourself with your ability credibly to express that commitment to others. But the linkage generates a strikingly unKantian result. The nature of agency cannot provide an apriori basis for honesty because what enables you to commit yourself is what also enables you to lie. (shrink)

The duty to keep promises has many aspects associated with deontological moral theories. The duty to keep promises is non-welfarist, in that the obligation to keep a promise need not be conditional on there being a net benefit from keeping the promise—indeed need not be conditional on there being at least someone who would benefit from its being kept. The duty to keep promises is more closely connected to autonomy than directly to welfare: agents have moral powers to give themselves (...) certain obligations to others. And these moral powers, which enable promisors to create agent- relative obligations to promisees, correlate with rights the promisees acquire in the process, such as rights to waive the duty or insist on its performance. As a result of promises, promisees acquire (not only rights but also) a special status: the promisees are the ones wronged when promises to them that they have not waived are not kept. One more aspect of the duty to keep promises that is associated with deontological moral theories is that what actions the duty requires is at least partly backward-looking: what actions the duty requires depends on facts about the past, namely facts about what promises were made and then waived or not. This paper surveys these aspects of the duty to keep promises and then explores whether rule-consequentialism can be reconciled with them. (shrink)

20 century. But this common picture of Prichard underestimates his place in the history of ethics, which I believe is central. This is not because he defended completely distinctive ideas; his most important views were shared by other philosophers of his period, from Henry Sidgwick to A.C. Ewing. But it is often Prichard who stated those views most forcefully and defended them best. These views can be summarized in a slogan Prichard himself did not use: “duty is underivative.” But the (...) idea that duty is underivative can apply at three different levels. The first concerns the normative realm as a whole; here it expresses the non-naturalist view that normative truths are sui generis, neither reducible to nor derivable from non-normative truths such as those of science. Duty is underivative in the sense that truths about how we ought to act, in the broadest sense of “ought,” are self-standing. The second level focuses more narrowly on moral judgements, as one kind of normative judgement. Now the claim is that truths about how we ought morally to act are also underivative, not only from non-normative truths but also from any other normative truths; there are no non-moral “oughts” or values from which moral “oughts” derive. The final level is that of specific deontological duties such as to keep promises, not harm 1 others, and so on. For Prichard these duties do not derive from a more general consequentialist duty to promote good consequences. The main reason we ought to keep our promises or not harm others is just that we ought to; those duties, like the normative realm as a whole and moral duty in general, are self-standing. Prichard accepted all three of these claims, though he did not distinguish the first two from each other as many present-day philosophers do. My main interest is in his defense of the second claim, about moral duty in general; this appears in his famous argument that it is a mistake to ask “Why ought I to do what I morally ought to do?” because the only possible answer is “Because you morally ought to.” But I will begin by examining his defense of the third claim, about deontological duties, because it sheds light on his methodology in discussing the other two. This is the subject of Section 1; later sections will address claims one and two.. (shrink)

For many students, success or failure hinges on their ability to locate logic within the context of everyday thought. One way of accomplishing this task is to emphasize the connections between natural and symbolic language. Many students, however, find that symbolic logic occasionally deviates from their expectations. In particular, they commonly have difficulty understanding the rationale behind the false antecedent conditional and the inclusive disjunction. In this article, I outline a teaching strategy that employs promise keeping as an analogy for (...) these standard interpretations of the propositional operators. (shrink)

There is much in Thomas Hobbes’s political theory that contemporary political philosophy cannot readily accept—including Hobbes’s egoism, his unconditional right of self-defense, and his insistence that peace is only possible under absolute sovereign rule.[1] Nevertheless, we can and should embrace one of Hobbes’s central insights: that problems of assurance are of fundamental importance for questions of social justice, even, or especially, justice questions of global scale. In general, agents face normatively significant problems of assurance because they have imperfect knowledge about (...) the conduct of others and must therefore weigh consequent risks of action. Practically speaking, the basic human device for their resolution is for agents to form “agreements”—promises, conventions, social practices, or institutions—that reduce uncertainty and thus “assure” the parties involved. None of this necessarily bears on basic principles of morality or justice, at least not without further argument.[2] Hobbes’s dramatic assurance problem—the state of nature—makes this further step. It shows vividly how agreement-making may be not simply a useful device but a condition for the applicability of basic principles. In the absence of an agreed upon common power to assure compliance, Hobbes explains, basic principles of conduct—including considerations of justice and injustice—are simply out of place. The resulting uncertainty about what others will do in the name of self-preservation gives us sweeping liberty to defend ourselves. Contemporary political philosophy is concerned with substantive political morality and “ideal theory,” so it may seem that Hobbes’s problem of assurance—a matter of amoral selfpreservation—can simply be set aside. This is to underestimate the depth of Hobbes’s insight. As I will explain, assurance problems can take specifically moral forms, arising even among morally motivated agents, in a way which bears on the very applicability of fundamental moral principles. In central cases of normative political philosophy, justification of basic principles, even in “ideal theory,” must be tailored to the circumstances that give rise to assurance problems and the available human means for their resolution.. (shrink)

Following a clarification of the nature of the “sightedness” and “blindness” which Wittgenstein associated with religious and mystical apprehenson, I argue that his account fails in both its visual and its religious senses. I close with an assessment of the extent to which descriptive language can be used to induce a religious perspective in someone who presently lacks it.

In my “Promising and Supererogation” I argue that one cannot fulfill promises to perform supererogatory actions (such as “I hereby promise to perform one supererogatory action every month”). In a response to my paper, David Heyd argues that there is an alternative solution to the problem I raise. While I agree with much that Heyd says about the examples he discusses, his proposed solution involves a crucial alteration of the problem; his proposed solution does not solve the problem I present.

A paradox involving promises to perform supererogatory actions is developed. Several attempts to resolve the problem, focusing in particular on changing our understanding of supererogatory actions, are explored. It is concluded that none of the proposed solutions are viable; the problem lies in promises with certain contents, not in our understanding of supererogation.

Promising is clearly a social practice or convention. By uttering the formula, “I hereby promise to do X,” we can raise in others the expectation that we will in fact do X. But this succeeds only because there is a social practice that consists (inter alia) in a disposition on the part of promisers to do what they promise, and an expectation on the part of promisees that promisers will so behave. It is equally clear that, barring special circumstances of (...) some kind, it is morally wrong for promisers to fail to do what they have promised to do. What is perhaps less clear is how the moral wrongness that is involved when promises are broken is related to the social practice that makes promising possible in the first place. (shrink)

Promising is clearly a social practice or convention. By uttering the formula, “I hereby promise to do X,” we can raise in others the expectation that we will in fact do X. But this succeeds only because there is a social practice that consists (inter alia) in a disposition on the part of promisers to do what they promise, and an expectation on the part of promisees that promisers will so behave. It is equally clear that, barring special circumstances of (...) some kind, it is morally wrong for promisers to fail to do what they have promised to do. What is perhaps less clear is how the moral wrongness that is involved when promises are broken is related to the social practice that makes promising possible in the first place. (shrink)

The insurance industry’s practice of producing comprehensive insurance policies can have unforeseen and negative ethical consequences. Insurance policies express promises from the insurer to the insured, to the effect that the insurer should be trusted to appropriately assist the insured in case of accident. The relation is seriously undermined when the content of the promise is blurred, containing clauses and condition which are ambiguous or hidden in fine print. This paper contains an investigation of (1) the sources of the fine (...) print policy practice, (2) its immediate effects on the degree to which the policies are understandable to the insured, (3) the ethical consequences that can follow from blurring the true content of the insurer’s promise to the insured and (4) the measures insurers can take in order to develop a more constructive ethical relationship with its customers. (shrink)

This Nietzschesque “genealogy of morals” presents the Confucian virtue of xin (trust and true) so basic to friendship as a civic virtue rooted among social equals. Among non-equals, a servant has to prove his trustworthiness but not yet vice versa. The script 信 ( xin ) tells of living up to one’s words. Yanxing 言行 (speech and action) describes actively keeping a verbal promise. The Agrarian school endorses xin as the primary virtue in its utopia of virtual equals. It knew (...) oral trust and had no use for written covenants. In debating Mencius, Gaozi kept to that earlier primacy granted public speech as tied to one’s social reputation. Mencius turned inward and elevated mind as the inner good of moral intent instead. In the Doctrine of the Mean , inner xin would expand outward into becoming the ultimate truth, the sincerity of Heaven and Earth. The essay ends on an aside on the case of the Cretan Liar. (shrink)

This paper replies to two arguments against marriage presented by Dan Moller (Philosophy 78, 2003: 79–91). One of Moller's arguments examines several ways in which the marriage promise could be explained, and shows that none of them is viable. The other argument suggests that marriage may not be a worthwhile enterprise since marriages frequently fail, in that they become loveless or end up in divorce. I argue that the marriage promise can be explained in a way unconsidered by Moller, which (...) renders the promise viable; and that notwithstanding the failure of many marriages, it still is, for some people, a worthwhile enterprise. (shrink)

Gregory Kavka's 'Toxin Puzzle' suggests that I cannot intend to perform a counter-preferential action A even if I have a strong self-interested reason to form this intention. The 'Rationalist Solution,' however, suggests that I can form this intention. For even though it is counter-preferential, A-ing is actually rational given that the intention behind it is rational. Two arguments are offered for this proposition that the rationality of the intention to A transfers to A-ing itself: the 'Self-Promise Argument' and David Gauthier's (...) 'Rational Self-Interest Argument.' But both arguments – and therefore the Rationalist Solution – fail. The Self-Promise Argument fails because my intention to A does not constitute a promise to myself that I am obligated to honor. And Gauthier's Rational Self-Interest Argument fails to rule out the possibility of rational irrationality. (shrink)

In apparent conflict with the popular conception of veterinarians as animals' best friends, the Veterinarian's Oath, as well as its clarifying Principles of Animal Welfare, imply that animal welfare is entirely derivative from human welfare. This article calls for an explicit alignment of the Oath and Principles with the priority of nonhuman animals.

The decision to get married, as well as choosing whom to marry, is of the utmost importance to most people. This decision consists of many amoral considerations, but an ethical relationship arises when a promise is made, especially a vow that binds for a lifetime and affects oneself, one’s spouse, one’s children, and society. This essay provides an account of ideal romantic marriage, arguing that John Stuart Mill’s On Liberty provides an excellent foundation for constructing such an account. Neither dead (...) dogma nor living truth is a healthy model for marriage, so a hybrid model of marriage, living dogma, is developed. The importance of the marital vow becomes apparent as the living dogma account is revealed, and this examination yields a model for how to decide when and whom to marry. (shrink)