Promises

If common law is to run parallel to the morality of promissory obligation, it must require the breaching seller to keep his promise, not simply to pay off the buyer. However, in the event of promise-breaking, common law orders the defendant to compensate the claimant for the loss that flows from the breach of the duty to perform. The following questions then arise: why does English law not order the defendant to do the very thing that the substantive duty requires (...) him to do? Why does it not adopt specific performance as the primary remedy? Is it because English law runs against the morality of promise? The answer is ‘no’. A number of justifications have been put forward to explain the common law’s reluctance to award specific performance despite its undoubted acceptance as the appropriate moral response to promise-breaking. This article will explain each and show which is more persuasive. (shrink)

Amidst the cacophony of claims made about forgiveness, this book serves to aid in an effort to put żforgiveness in perspective.ż Marieke Smit and Christopher ...

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.

Shared agency is of central importance in our lives in many ways. We enjoy engaging in certain joint activities with others. We also engage in joint activities to achieve complex goals. Current approaches propose that we understand shared agency in terms of the more basic phenomenon of shared intention. However, they have presented two antagonistic views about the nature of this phenomenon. Some have argued that shared intention should be understood as being primarily a structure of attitudes of individual participants (...) and their interrelations (Bratman, Searle, Tuomela and Miller). Others have claimed that shared intention should be regarded as being primarily a normative transaction which gives rise to interpersonal obligations (Gilbert). In contrast to these approaches, I propose a compromise view. I argue that shared intention involves a complex socio-psychological structure which ensures, in the absence of special circumstances, the existence of relevant moral obligations. My argument involves two main steps. First, I show that shared intention includes important relations of mutual reliance between the participants. Then, I argue that the existence of these relations of mutual reliance in shared intention helps us explain why, failing special circumstances, shared intention generates those obligations. This provides, in my view, a solution to the vexed question of the relation between shared intention and interpersonal obligations. (shrink)

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)

This essay offers some brief thoughts on Seana Shiffrin’s recent work regarding the divergence of contractual and promissory norms. I conclude that Shiffrin does not do enough to separate and account for the different consequentalist and deontological justifications underlying each institution, and does not do enough to explain how promises give rise to the “moral” duties she posits. I suggest, instead, that the divergence between contract and promise is justified by the different roles each institution plays in our lives, and (...) that, in fact, keeping strictly promissory duties outside the scope of state coercion actually facilitates a strong culture of responsible moral agency. (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 has been some debate as to whether or not it is possible to keep a promise, and thus fulfil a duty, to supererogate. In this paper, I argue, in agreement with Jason Kawall, that such promises cannot be kept. However, I disagree with Kawall’s diagnosis of the problem and provide an alternative account. In the first section, I examine the debate between Kawall and David Heyd, who rejects Kawall’s claim that promises to supererogate cannot be kept. I disagree with (...) Heyd’s argument, as it fails to get to the heart of the problem Kawall articulates. Kawall’s argument however fails to make clear the problem with promising to supererogate because his discussion relies on the plausibility of the following claim: that supererogatory actions cannot also fulfil obligations. I argue that this view is mistaken because there are clear examples of supererogatory actions that also fulfil obligations. In the final section, I give my alternative account of the problem, identifying exactly what is wrong with fulfilling a duty, and thus keeping a promise, to supererogate. My diagnosis emphasises the importance of identifying non-supererogatory actions when it comes to understanding the way in which supererogatory actions go above and beyond the call of duty. (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)

This study on the Speech Act of Promising builds on an article by Egner which claims that in many African Societies a promise is most often made not to be committed to its content but to be polite and save one's own or the addressee's face. While Egner opts for a Speech Act Theory approach to explain the phenomenon and comes to the conclusion that the speech act of promising may occur minus commitment, thus refuting the standard SAT claim, I (...) have opted to treat the issue within Relevance Theory and claim that a true speech act of promising cannot be without commitment since it is a performative and institutional speech act which has to be committed by its very nature. I have rather explained that the concept PROMISE can be used as an ad hoc concept PROMISE* which conveys a speech act of "saying that" and which is a broadened version of the encoded concept to make commitment optional and include issues of politeness and face saving. While Egner claims that a committed speech act can be determined by linguistic indication most of the time I claim that the intended interpretation falls out naturally from the relevance theoretic comprehension procedure which is: "Follow the path of least effort in determining cognitive effects and stop when your expectation of relevance is fulfilled". Unlike Egner I claim that at the root of using non-committed promises as a face saving device are shame oriented cultures that need these kinds of mechanisms for politeness more than guilt oriented cultures. (shrink)

Ethical oaths for bankers, economists and managers are increasingly seen as successful instruments to ensure more responsible behaviour. In this article, we reflect on the nature of ethical oaths. Based on John Austin's speech act theory and the work of Emmanuel Levinas, we introduce a performative concept of ethical oaths that is characterised by (1) the existential self-performative of the one I want to be, which is (2) demanded by the public context. Because ethical oaths are (3) structurally threatened by (...) the possibility of infelicity or failure, we stress (4) the behavioural aspect of ethical oaths in economics and business. We conclude that a performative concept of ethical oaths can contribute to more ethical behaviour in economics and business, because the performative involves action and behaviour. At the same time, it becomes clear that a radical new perspective on the nature, function and limitation of oaths is needed. (shrink)

This book addresses fundamental questions about marriage in moral and political philosophy. It examines promise, commitment, care, and contract to argue that marriage is not morally transformative. It argues that marriage discriminates against other forms of caring relationships and that, legally, restrictions on entry should be minimized.

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.

In this paper, I draw a distinction between two fundamentally different kinds of commitments by highlighting some previously unnoticed subtleties in the pragmatics of “commissive” utterances. I argue that theories which seek to model all commitments on promises, or to ground them all on voluntary consent, can account only for one sort of obligation and not for the other. Since social groups are most perspicuously categorized in terms of the sorts of commitments that bind their members together, this puts me (...) in a position to distinguish two importantly different kinds of social groups, which I call aggregations and associations. I try to show that this position can account for features of the normative structure of social groups that are overlooked by those theorists who have attempted to offer a unitary, voluntarist account of the phenomena under investigation. (shrink)

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)