7/29/2019 Pink10

1/35

1

Draft: please do not cite or circulate without permission

Thomas Pink

Promising, Natural Law and Moral Personality1

1. Promising the communication of an intention to obligate oneself?

Promises to do things are made by promisors to promisees. And they typically leave

the promisors morally obliged to act as promised an obligation they have to thepromisee, who thereby acquires a moral right to what was promised to them.

How is this possible? For clearly it is not a trivial fact that promisors owe it morallyto promisees to keep promises. Indeed whether a promisor is morally bound to dowhat he promised whether breach of the promise would be blameworthywrongdoing can in a particular case be a substantial moral question, the resolutiondepending much on debate about factors such as disproportionate or unexpected

burdens falling on the promisor, the possibility that the promise was induced bycoercion or deceit, and so forth. On the other hand it does seem a fundamental part ofour understanding of promising that absent such factors it can and normally does

obligate the promisor. People who make promises would generally acknowledge thatthey are thereby imposing a moral obligation on themselves to act as promised, suchthat subsequently breaking the promise would normally be wrong.

Does the possession, or at least the expression by the promisor of an intention toobligate himself play any role in promising and in the generation of promissoryobligation? Many modern authors would suppose so: by its very nature, theysuppose, the act of promising involves the communication or expression of anintention to obligate oneself a communication or expression that, if variousconditions are met, can then obligate the promisor. Here, for example, is JohnFinniss account of a promise:

First, what is a promise or undertaking? Being a human practice, engaged in andmaintained for diverse practical purposes, promising has its central cases (its focalmeaning) and its secondary or borderline cases. Centrally, then, a promise is constituted if

1Versions of this paper have been given at the Universities of California at Riverside,

CEU Budapest, Chicago, Keio Tokyo, Leuven, London, Princeton, St Andrews, andYork.

My thanks for their comments especially to Thomas Baldwin, Annabel Brett,Daniel Brudney, James Conant, Tim Crane, Wim Decock, Wolfgang Ertl, KatiFarkas, Peter Graham, John Haldane, Harold James, Jonathan Lear, Michael Martin,Elijah Millgram, Veronique Munoz-Darde, Martha Nussbaum, David Owens, JonParkin, John Skorupski, Timothy Stanton, Carlos Steel, Eric Schliesser, Martin Stone,Candace Vogler, Gary Watson.

7/29/2019 Pink10

2/35

2

and only if (i) A communicates to B his intention to undertake, by that very act ofcommunication (in conjunction with Bs acceptance of it), an obligation to perform acertain action (or to see to it that certain actions are performed), and (ii) B accepts this

undertaking in the interests of himself, or of A or of some third party C.Natural Lawand Natural Rights pp298-99

And here is another account by David Owens along similar lines:

But at least this much is true: I am not promising to take you home unless, in saying whatI say, I mean to communicate an intention to undertake an obligation to take you home. A simple theory of promising David Owens,Philosophical Review, vol 115, no1, 2006 p51

Joseph Raz speaks of promissory obligation as a voluntary obligation in that it isundertaken by acts performed in order to undertake an obligation. (TheAuthority of

Law p257) and has defended what he calls an obligation conception of promising,according to which:

To promise is, on this conception, to communicate an intention to undertake by the very

act of communication an obligation to perform a certain action. Promises andobligations p218 inLaw, Morality and Society, eds P.M.S. Hacker and J. Raz

So, on this widely held view, a promise is an action by which someone (thepromisor)deliberately communicates or expresses an intention to obligate themselves to another

person (thepromisee); and can, subject to the consent or acceptance of the other, bythat action bring it about that they are so obligated.

There are two parts to this doctrine. First, there is a claim about the act of promising

itself: that promising serves to express or communicate an intention to obligateoneself. Now not all promisors need actually possess such an intention. But those

promisors that do not are still communicating or suggesting otherwise, and assumingthey understand what promising involves, are, by that very fact, being insincere ordeceitful. Perhaps such promisors really intend not to act as promised, and so intendor at least prefer if possible to escape any moral obligation, and by promising strive tomislead the promisor as to their true intentions. Whereas a sincere promisor willalways really hold the intention that his promise expresses; he really will mean toobligate himself. Second, there is a claim about promissory obligation itself: that itssource is to be found in the promisors communication, whether honest or deceitful,of an intention to obligate himself. Promising therefore involves a noteworthy, even

remarkable, normative power a power morally to obligate ourselves voluntarily orat will, just through expressing an intention to become so obligated.

My purpose in this paper is to establish two conclusions. The first is about theintentions of promisors, and, connectedly, about how promisors are understood byothers. It is perfectly true that many promisors may well intend to obligatethemselves to act as promised, and may well frequently be understood both by

promisees and by third parties to possess this intention. But, I shall argue, a perfectlysincere and competent promisor may still make his promise without holding any suchintention. A perfectly sincere promisors motivation his goal in making the promise

need have nothing to do with actually incurring such an obligation, but may be quite

different, and be understood to be such by the promisee. Each party may recognize orbe ready to acknowledge that through the promise an obligation has been created.

7/29/2019 Pink10

3/35

3

Promises generally create obligations to act as promised; and to have anyunderstanding of what promising involves is to know this, or at least to know that

people generally view promises in these terms. But the creation of the obligationneed not have been the purpose of the promisor or something desired or hoped for bythe promisee, and neither party to the promise need suppose otherwise. In such a case

there need be nothing incompetent, insincere or deceitful about the promisor or hispromise.

Secondly, and most importantly, even if a promisor does hold an intention to obligatehimself to act as promised, the expression of such an intention plays no role in thegeneration of promissory obligations, which originate in quite another way. The useof terms such as I promise by the promisor may serve to acknowledge the existenceof a consequent moral obligation to act as promised, whether or not this obligationwas specifically intended. But the source of the obligation does not lie in any suchacknowledgement of an obligation, still less in the expression of an actual intention or

purpose that the obligation arise. The source of the moral obligation lies instead at a

deeper level, in an activity that does not require the use of terms such as I promise,and that certainly has nothing to do with any expression of an intention to obligateoneself.

Promising in everyday life contrasts importantly with the use of legal formulae thatmay have as their sole function the creation of a new legal relation, such as a transferof rights or a legal obligation. The sole function of a formula such as 'I hereby

bequeath' or 'I formally contract' may be simply to effect a legal transfer, or to imposeon oneself a legal obligation; and without the use of these set forms, the transfer orthe imposition of the legal obligation may not be possible. In which case someonewho uses these expressions, and does so with a competent understanding of theirfunction, may be said to be expressing an intention to effect the transfer or to imposeon themselves the legal obligation. But the expression 'I promise to', at least outside aspecifically legal or institutional context, is not the same. The apparently sincereutterance of these words may, in general, impose an obligation on the speaker. Butthe production of that obligation need not exhaust the function of that expression.Indeed promising may have other functions, and other things may be done by a

promisor than simply undertaking an obligation - things that might be done evenwithout the use of expressions such as 'I promise to'; and it may be these other thingsdone that help explain the obligations which promising generates. In which case,even if all parties may foresee the obligation that a promise produces, their goals andintentions may not lie in the production of that obligation, but may rather have to dowith those other things done. Or so I shall now argue.

2. What promise-makers intend

There is something strange about the standard account of the intention expressed by apromise. It is left entirely to do with the moral status of the promisors future actions.In promising the promisor is supposed, if sincere, to be concerned with ensuring thathe is obliged to do something. For the presence of such a concern is supposed to bewhat his promise conveys. Now, as we have already agreed, people certainly treat

promise makers as frequently under a moral obligation to keep their promises. Atleast they view the deliberate breaking of a promise as generally wrong, unless the

promise was to do something wrong in the first place, or unless the promise is brokenfor some fairly good reason. But this does not mean that promise makers need have

7/29/2019 Pink10

4/35

4

formed an actual intention to obligate themselves; that it was changing the moralstatus of their future actions that was their goal, or that the lack of such an intentioninvolves any insincerity.

Suppose, for example, that I am a doctor faced by a worried patient who wants me to

be present next week at the crucial operation. The worried patient begs: Promise medoctor, that you will be there. And I reassure her: I promise. My goal in makingthis promise is, surely, to give my patient something she has requested and badlywants. But precisely for this reason my goal need not be to change what I am morallyobligated to do. For my promisee need not be at all interested in what duties I am to

be under.

Were the matter raised, the patient might well agree that in promising I am obligatingmyself to her. But I doubt that it is that obligation in her favour that she need

particularly want to receive. What the deeply worried patient clearly wants is mypresence at the operation and assurance of this presence in advance. And in making

my promise my intention will be to offer the patient precisely what she wants not anobligation on my part to be present, but my actual presence, with prior assurance thatI will in fact deliver on the offer. Why should obligations matter to either of us

provided my promise constitutes the offer and reassurance that the patient wants, andprovided I do eventually deliver on my promise by actually being present at theoperation? 2

It might be thought that the existence of the obligation must matter to the patient. Forwhat else will reliably motivate me to act as promised but the existence of a moralobligation to do so? Without that motivation, how can the patient be assured that Iwill be there as promised?

Certainly some philosophers have thought that only a sense of duty a belief that oneis under a moral obligation to deliver will motivate promise-makers to keep their

promises. Hume made this very claim as part of his famous argument for theartificiality or conventional origin of the obligation to keep promises:

Now tis evident we have no motive leading us to the performance of promises, distinctfrom a sense of duty. If we thought, that promises had no moral obligation, we never

shoud feel any inclination to keep them. This is not the case with the natural virtues.ATreatise of Human Nature (ed L.A. Selby-Bigge Oxford 1978) Book III Part IIsection V 'Of the obligation of promises' p518

But it is simply not obvious that Humes claim is true. Why cannot a promise makerbe motivated simply by the thought that they have promised that they have giventheir word? The content of this thought is not obviously about obligations at all, andits motivating force does not strictly depend on thoughts about obligation. Which iswhy someone can intelligibly be motivated to keep a promise even when scepticalabout whether they are really bound by any obligation to do so. Suppose, because ofa quite unexpected change in circumstances and the resultantly and suddenly hugecost to him of keeping his word, the doctor wonders whether it might indeed have

2 That is not to rule out cases where the patient might be particularly concerned tosecure an obligation in her favour. It is just to suggest that there can perfectly well beother cases where all that is really wanted is the doctor's presence, and advanceassurance of that presence.

7/29/2019 Pink10

5/35

5

become strictly permissible for him not to keep his promise to his patient. He mightsurely still be motivated to keep his promise by the thought that nevertheless,

permissible or not, he hadgiven his word. Such a motivation might appear quixoticto some. But the motivation is not unintelligible, and it does not involve thoughtsabout moral obligation. I shall return to say something of what it might involve.

Notice in particular that even if as the doctor I am not at all concerned with the moralstatus of my future actions I am concerned simply to provide honest reassurance tothe patient that I will indeed be there - I am plainly not being in any way deceitful orinsincere, nor am I being incompetent in my use of language. My utterance of the

promise need not be in any way misleading to the patient, for she need not understandme as having the production of a moral obligation as my goal. My sincerity as a

promisor she will understand as lying not in the genuineness of my intention toobligate myself to her, but in the honesty of my offer to her of my future presence atthe operation. And in failing to attribute to me any actual intention or purpose ofobligating myself, just as the patient is not failing to understand me she understands

me well enough as seeking honestly to reassure her - so she is not being deficient inher understanding of what promises are, or what the sincere utterance of a promiseimplies about a promisors state of mind. This doctor-patient exchange is an entirelynormal case of promising. Despite the very possible absence in both parties of anyintention of or concern with obligation, there seems nothing defective or borderlineabout it.

The early modern tradition of Catholic natural law made extensive discussion of themorality of promising. And in its discussion there was frequent recognition of the

possibility that many promise makers might not actually intend anything regardingtheir own obligations, and not necessarily out of deceit or insincerity, but because a

promisor might simply not be concerned with determining the moral status of theirfuture actions. It was perfectly clearly realised that, as with the doctor promising to

be there, the promisors intention might merely be to offer to act as promised and toprovide assurance of delivery on that offer. But in giving attention to the possiblelack of any actual intention in the promisor to obligate himself, these Catholicmoralists were not just giving due recognition to psychological reality. They werefacing up to what, for their tradition, was a serious theoretical difficulty.

Why does the standard description so neglect the promisors offer to do what ispromised, and concentrate instead on the promisors supposed intention to obligatehimself? In fact this standard description is the survival of a once important andinfluential theory of promising.

It looks as though promising is something we can do at will. Add to this the perfectlytrue thought that, standardly at least, promising is an action by which we can obligateourselves morally to others, at least if those others consent to the obligation. It is thentempting to infer that promising involves a power that we possess to obligateourselves morally to others at will. But then if we do possess such a power toobligate ourselves at will or voluntarily, is not the will to obligate ourselves thesource of the obligation when the power is exercised - at least if this will is expressedso as to obtain the consent of promisees? In other words it is a declared will toobligate oneself which produces promissory obligation. In which case the centralfunction of promising must be to express to others ones will to obligate oneself

through the very promise which one is making.

7/29/2019 Pink10

6/35

6

This view of promising then explains very well the appeal of the standard descriptionof what the action of promising itself consists in. If promising is all about obligatingoneself, and if the obligation to keep a promise comes from ones intention so toobligate oneself provided this intention is communicated to the promisee and the

promisee consents, then it had better be our possession of this crucial obligation-

productive intention which the act of promising communicates or expresses to apromisee.

The theory of promising as involving this particular power to obligate oneself at will where the source of the obligation is ones will that one be obligated - wasencouraged by a certain model of legislation that was applied to the case of promisingtoo. Any legislator has authority; and, according to the model, legislative authorityconsists in an ability to will obligations into existence obligations that apply tothose subject to the authority, provided the will is promulgated or expressed. Supposewe apply this model to promising: the promisor is essentially legislating in their own

particular case, through an authority they hold over themselves that consists in a

corresponding power to obligate themselves at will, provided the intention isexpressed, and accepted by the other to whom they are to be obliged. This legislativemodel was very current within the tradition of Catholic natural law. Thus we read a

prominent Dominican moralist of the sixteenth century, Domingo Soto, stating assomething quite uncontroversial:

A vow is a certain law which comes out of the human will, a law which, of course,

someone imposes on themselves. Domingo de Soto De iustitia et iure, Liber 7,Quaestio 2 Whether every vow obligates to its fulfillment (Salamanca 1556)

p629

But then we can understand exactly why there was so much interest among early

modern Catholic moralists in the possible non-existence of a will or intentionspecifically to obligate oneself. What if one promises, but without actually holdingan intention to obligate oneself to another? For example, suppose we have a case ofwhat, on any theory of promising, must count as actual insincerity and deceit. Whatif one makes a promise despite intending not to act as promised? Here it is becauseone deceitfully intends not to deliver on ones promise that one fails to intend toobligate oneself. Indeed, far from being unmindful of ones future moral obligations,one may even actually intend notto become obligated so to act. We want to say themoral obligation is not so easily avoided by the mere lack of an intention to obligateoneself, for otherwise obligation-free deceitful promising would become too easy.But then we come back to the quasi-legislative model: was not an intention to

obligate oneself supposed to be the necessary source of the obligation? The tensionbetween this model and possible psychological reality was deeply felt. Somethinkers, such as Domingo Soto, were willing, if pressed, to admit that the obligationthat immediately arises from a promise need not arise from an intention to obligateoneself, and that it can arise even without this intention though withoutacknowledging the difficulties posed by this admission for their favoured legislativemodel and its explanation of promissory obligation. Others, such as Liguori, insistedon the legislative model to draw what they took to be its consequence: that a

promisors possession of an intention not to incur an obligation does indeed preventhis promise from giving rise of itself to any obligation:

7/29/2019 Pink10

7/35

7

for a law (in so far as a vow is a particular law) does not oblige unless according to the

will of the law-giver. Alphonsus de Liguori Theologia Moralis, Liber III, Tract II,Cap III, De voto, dub II (ed Gaude, Rome 1905) volume 1 p501

Not that Liguori thought that promisors could evade all obligation simply through

intending not to incur it. Though the promisors intention not to be obligatedprevented the promise and its acceptance generating any obligation of themselves, thepromisor might still become morally obligated to the promisee if the promisee everrelied on the promise in his own subsequent choices and decisions.

But if, as I think many philosophers would now agree, the moral obligation is still toarise just from the promise whether or not there actually is an intention to obligateoneself, the obligation cannot arise as a product of any will to create it. It must thenhave quite a different origin. And why then, if the actual possession of an intention toobligate oneself does not matter to the obligations production, should modern

philosophers still be so sold on the idea that the promise serves to express such anintention, whether or not it actually is present, as even in a sincere promisor, such asour doctor, it might very well not be?

I suspect that with many promises in everyday life, such as the promise made to theworried patient by the doctor, thoughts about obligation often arise first only when orif the promise gets broken; and these thoughts will arise, in particular, in the mind ofthe promisee who feels wronged by the promisor. But even here the promisee willnot simply feel that they have been deprived of something they had a right to. Theymay also feel hurt and diminished. And the feeling of hurt that often meets broken

promises is something we need to say more about. It is certainly not explainedsimply by referring to some obligation that the promisor has breached. For one caneasily feel that one has been denied a right without feeling especially hurt or

personally diminished by that denial. Whereas there clearly is something ratherpersonal about someones breaking their word to you. And a theory of promisingneeds to explain what this personal hurt might involve.

What must a promisor really intend? Clearly, they must intend to convey an offer tothe promisee an offer of the action promised with an assurance or pledge of deliveryon that offer that involves but goes beyond the mere expression of an intention todeliver. But though promises may generally obligate, as we have seen it need not bethe promisors actual intention that they should. Even if the obligations generationmay be foreseen, the purpose of making a promise need not be to generate thatobligation, or to offer the obligation to the promisee. What the promisee is offered

first and foremost is not the moral obligation, which in many cases they are unlikelyto want, but something quite different and of much greater interest to most promisees- performance of the action promised.

Besides promises to do things orpromises to promises as to performance orperformance promises - there are promises as to fact factive promises orpromisesthat.3 I promise you it really happened, right before my very eyes. Now there

3 My use of the term promises that for promises as to fact is simply a useful

abbreviation. It is not meant to deny the fact that one can of course use the promisethat form in communicating what I call promises to: as in I promise you that I willdo it.

7/29/2019 Pink10

8/35

8

seems something aboutpromising thatwhich leaves it very likepromising to. But thething in common is not obviously the expression of a corresponding intention toobligate oneself. That is, it does not seem that aspromisors to (supposedly) expressan intention to obligate themselves to, so promisors that express an intention toobligate themselves that. For there are no obvious obligations that. Obligations are

always obligations to obligations to perform, to do things or refrain from theirdoing.

It is tempting to cast around for some obligation to perform that all makers of factivepromises distinctively incur through making their promise, so that their making of afactive promise that can express their intention to incur this obligation. But whatmight this obligation be? Is it an obligation to speak the truth, or at least to take carethat truth is spoken? But in ordinary assertion such an obligation is plausibly incurredanyway, whether or not a promise as to fact is actually made. Perhaps then it is somefurther, more demanding obligation. But the candidates are not obvious. Certainlythere is no single candidate as obvious as the obligation on the maker of a

performance promise to perform the action promised.

Of course it might be thatpromising thathas nothing much to do withpromising to; itmight be that promising that is a peripheral phenomenon, that sheds no light on

promises as to performance.4 But I shall suggest that that is not so. We shall find

that promises that and promises to work in the same way when considered at adeeper level that is not itself to do with obligations. And it is only when considered atthat deeper level that the genuine connexions that there are between performance

promises in particular and obligation will really become intelligible.

3. Hume and Locke on promising

Locke thought that we had a natural or pre-social power to make promises or enterinto agreements:

For tis not every Compact that puts an end to the State of Nature between Men, but onlythis one of agreeing together mutually to enter into one Community, and make one BodyPolitick; other Promises and Compacts, Men may make one with another, and yet still bein the State of Nature. The Promises and Bargains for Truck, etc. between the two Men in

I have learnt that both in Japanese and in certain US contexts, the use of one

and the same expression, such as 'I promise' to effect both factive and performativepromises, is much less common than it is in British English. For example, in the USfactive promising more commonly involves the use of 'I guarantee that' or 'I swearthat' or some like expression. For reasons that will become evident, this will notmatter to my argument. For what is done in promising, either factive or performative,can be done with or without the use of a single set expression such as 'I promise'.

4 Such a process of subdivision can of course go further, as the theories we devise

apply to a smaller and smaller field becoming restricted not only to promises as toperformance, but then only to such promises involved some form of reciprocalexchange. We shall see how many philosophers have indeed attempted to treat

promises involved in exchange as a case that is supposedly central and to beconsidered apart from any other, and how far this approach to promising is warranted.

7/29/2019 Pink10

9/35

9

the Desert Island, mentioned by Garcilasso De La Vega, in his History of Peru, or betweena Swiss and an Indian, in the Woods of America, are binding on them, though they are

perfectly in a State of Nature, in reference to one another. For Truth and keeping of Faith

belongs to Men, as Men, and not as Members of Society. John Locke Second Treatiseof Government (ed Peter Laslett, Cambridge 1960) chapter 2, Of the state ofnature para 14, p277

Whereas Hume denied that we had any such pre-social power. For Hume, thepossibility of promising must depend on the existence of a social convention orpractice of promising:

I say, first, that a promise is not intelligible naturally, nor antecedent to humanconventions; and that a man, unacquainted with society, could never enter into anyengagements with another, even tho they could perceive each others thoughts by

intuition. HumeA Treatise of Human Nature (ed L.A. Selby-Bigge Oxford 1978),Book III, Part II, section v, 'Of the obligation of promises' pp516

What is at issue? Plausibly the use of the words I promise in making agreementsinvolves and requires what Hume calls human convention, just as does the use ofany linguistic term. If promising is seen as a practice that, by its very nature, isdependent on the use or availability of certain linguistic expressions, then it mightseem as though Humes point follows immediately. The possibility of promisingmust indeed depend on the existence of a convention or practice of promising.

But Humes position is not so trivial. For suppose the possibility of promising diddepend on the availability of a certain kind of linguistic expression. 5 It would not

follow that the obligations and related rights that fidelity to promises respects wereconventional in basis. For it might still be that these obligations and rights precede

the practice of making and keeping promises and that they shape and determine theform which that practice takes. Whereas Humes position was in fact the opposite:that these obligations and rights are products of and dependent on the practice ofmaking and keeping promises, and that it is the form which that practice has takenwhich has determined the nature of these obligations and rights.

Hume sees promising and the virtue or obligation of fidelity to promises as part ofwhat he calls artificial virtue morality in a form that depends on and derives from avariety of conventions, conventions that have been developed not to assert and protect

pre-existing moral standards, but in order to attain quite different ends. Promising isin the same category as justice understood as respect for property, as allegiance to the

state, and as chastity or marital fidelity. Conventions that determine what counts asthe making and keeping of promises, that define what constitutes ownership and theconstitution of the state and of political authority all these have arisen the better toenable individuals to further their own self-interest. But in so far as respect for theseconventions, just by furthering the self-interest of the generality of individuals,equivalently serves the common good, so we come morally to approve of suchrespect, and to regard it as morally virtuous and obligatory. So conventions thatdeveloped to further individuals self-interest come to define new forms of moral

5 I shall suggest below that the ability to promise and incur promissory obligations is

not in fact dependent on the existence of distinctive linguistic terms such aspromise, but can be exercised prior to and independently of them.

7/29/2019 Pink10

10/35

10

right and obligation forms of right and obligation that would not have existed at allwithout those conventions.

Now this sort of claim, at least regardingsome obligations and rights, was not originalto Hume. It formed part of a project that ran through the natural law ethics that was

widely taught in Protestant universities in Humes youth. For it does seem intuitivethat many parts of morality and the rights and obligations that compose them mightbe brought into existence by the development of various forms of social interaction.

Perhaps the point is most intuitive in respect of property. Whether we conceive ofhumanity as living originally in some earthly paradise or else in some condition of

primitive and uncultivated want, it seems unobvious that there were always propertyrights and obligations to respect them. Perhaps instead property rights only appearedthrough a process of human social development. As for property, so for other thingstoo, such as the existence of states and forms of political authority with concomitantrights to command or legislate and obligations to conform to legislation.

So central in particular to the modern or Protestant natural law tradition was theproject of explaining some parts of morality as not natural or original to human naturebut as instead artificial, in Humes phrase, or as adventitious, to use the term of hispredecessor, the 17th century natural lawyer Samuel Pufendorf. These developmentalaccounts of human morality were linked to general theories of human social,economic and political development. For the development of artificial or adventitiousforms of morality went hand in hand with the development of the social institutionsand structures that those new, humanly generated forms of morality governed. In theProtestant natural law tradition we see moral theory linked to highly inventiveexercises in history and social science. And though Hume was not himself a naturallawyer he specifically denied what natural law affirms: that moral obligationconsists in the existence of a distinctively practical form of reason in legal ordemanding form that governs us just as possessors of a rational, human nature6 he

otherwise perpetuates and further develops much of the social scientific and historicalresearch programme of his predecessors.

By what mechanism of social interaction was artificial virtue brought into existence?Pufendorf had taken the relevant mechanism to be that ofpacta of pacts oragreements.7 So, for example, property and our obligation to respect it was to be

explained in terms of agreements to institute and abide by certain rules of property agreements that it served each individuals interests to enter into. But if theadventitious or artificial is the creation of agreement, and agreements are exchangesof promises, that might make it appear that the obligation to keep promises must atleast be natural. On the other hand, for Pufendorfpacta or agreements need notinvolve the actual exchange of promises. They can include something more likeconventions as well as formal promises. For example, it is supposed to be pactawhich generate even linguistic meanings. But clearly the basis of linguistic meanings

6 For more on this central claim in early modern natural law theory, see my Natural

law and moral obligation from Suarez to Locke in Psychology in Philosophy: fromLate Scholasticism to Contemporary Thoughted. Sara Heinmaa and Martina Reuter,Dordrecht: Kluwer 2008

7 See hisDe Iure Naturae et Gentium, Amsterdam 1688.

7/29/2019 Pink10

11/35

11

plausibly lies not in promising, but in the gradual development of shared habits orconventions of linguistic use.

What Hume clearly perceives as Pufendorf does not, is the important differencebetween a mere convention or mutual adaptation of behaviour and an actual exchange

of promises. So Hume replaces Pufendorfs appeals to undifferentiated pacta. Therelevant artificial virtue-creating mechanism of social interaction for Hume isdefinitely convention - a kind of mutual adaptation of behaviour in the pursuit ofindividual self-interest that need never involve any exchange of promises. That done,Hume is then in a position to explain promising and the obligation to keep promisesas itself, like language, political allegiance or property, a product of convention.

But otherwise Hume follows the same strategy as Pufendorf. For both thinkers,artificial or adventitious morality and the social institutions that come with it are allcreations of human self interest in enlightened form self interest that motivates us tomake pacts and agreements and to establish and follow conventions. Both thinkers

conceive of promising and agreement, then, as a feature not of generous giving nor offriendship, but of a common pursuit of individual self-interest. Thus Pufendorf:

From what has been said, it is understood how works of humanity or of love differ fromthose which are required from a right properly understood, and are, therefore, directed byactual justice. The former are not caused by nature of agreements, express or implicit, butare laid upon all men by nature herself on mere grounds of obligation. But whateverthings I owed a man from agreements or covenants, I owe because he has secured a newright against me by my own consent. Furthermore, whatever I have done with anotherman in agreements, I have done not so much for his advantage as for my own, while in the

duties of humanity the very opposite is the case. PufendorfOn the Law of Nature andNations Book 3, chapter 4, para 1 (pp379-80 translation of the 1688 edition by

C.H. Oldfather and W.A. Oldfather, Oxford: Clarendon Press 1934)

There is much of importance in common between Pufendorf and Hume. Both openlydiffer from Hobbes in seeing an important category of our obligations to others asarising naturally, independently of any agreement or convention. Both believe in anatural morality of obligations of what Pufendorf terms humanity or love and Humeterms benevolence. Independently of any social interaction, this wholly natural partof morality commits us just as human beings to providing various kinds of basic helpto those in need, and to refraining from various kinds of assault and harm. It is theestablishment of conventions and pacta or agreements which thereafter extends thisinitially natural morality into new and humanly created, adventitious forms and

which does so, at least immediately, in the service of self interest rather thanbenevolence.

And this brings us back to the original dispute between Locke and Hume. Whysuppose with Hume that the rights that fidelity to promises protects are products ofconvention, rather than preexisting rights that help shape the form that our practice ofmaking and keeping promises takes? For many will find something deeply intuitiveabout Lockes claim that

Truth and keeping of Faith belongs to Men, as Men, and not as Members of Society.

Hume makes his task look easier by tying belief in the naturalness of the morality ofpromises to the dubious theory which we began by considering the theory of analleged pre-conventional power to obligate ourselves at will.

7/29/2019 Pink10

12/35

12

If promises be natural and intelligible, there must be some act of the mind attending these

words, I promise; and on this act of the mind must the obligation depend. Hume ATreatise of Human Nature, Book III, Part II, section v, Of the obligation of

promises pp516

But, according to Hume, there is no act of the mind that can give rise to a moralobligation just like that and certainly not the most obvious candidate, a willing orintention of the obligation. For moral obligations, according to Hume, consist inhuman sentiments sentiments of disapproval that we are disposed to feel towardsthe obligation-breaker. And sentiments are not voluntary or subject to the will.

The peculiarities of Humes model of obligation aside, the whole model of promisingas being about creating obligations through a will or an expressed will to do so mayanyway be a red herring a descendant of a misguided attempt to explain promisingand the obligations to which it gives rise in legislative or quasi-legislative terms. Thenaturalness of the obligation to keep promises may in fact be defensible quiteindependently of any reliance on this quasi-legislative model of what promisinginvolves. Or so I shall argue. But first we must examine Humes conventionalisttheory of promising and promissory obligation in more detail.

4. The promising convention

As we have seen, Humes positive theory is that the obligation to keep promises is theproduct of a particular convention, a promising convention. What is the function ofthis convention, and how has it arisen? Humes claim is that this promisingconvention arises to meet a particular need that of enabling and facilitating self-

interested exchange.

How can self-interested agents provide others with goods and services with theassurance of receiving a definite return in exchange? The problem is supposed byHume not to arise with simultaneous exchanges, since if one party ceasesreciprocating the other can just as immediately stop performing too. But what if areturn can only be made later?

Now as it frequently happens, that these mutual performances cannot be finishd at thesame instant, tis necessary, that one party be contented to remain in uncertainty, and

depend on the gratitude of the other for a return of kindness.A Treatise of Human

Nature, Book III, Part II, section v, Of the obligation of promises, Hume p519

But why suppose that having received what they wanted, the equally self-interestedcounterparty will ever make that return? Gratitude wont reliably motivate the

predominantly self-interested. So, to take his famous example, Humes two farmerseach have fields in need of harvesting. Neither farmer can harvest his own fieldsalone; each farmer needs the others help to get his harvest in. But neither farmer willhelp first as neither sees any likelihood that their help will be returned. For whyshould the counterparty see it as in his interest, once his fields are harvested, to returnthe help?

The seasons change; and both of us lose our harvests for want of mutual confidence andsecurity.ibidp521

7/29/2019 Pink10

13/35

13

Self interest may of course get canny, or at least optimistic. We only need thehopeful thought to spread that favours done without hope of immediate advantagemay yet eventually be returned and bring long term advantage to their provider.Through the prevalence of such thinking we may enter a cycle of mutually

advantageous self-interested exchange. But a problem nevertheless remains. How tomark out interactions where a return is expected, and distinguish them from the moregenerous and noble intercourse of friendship and good offices where return is not inquestion? And where a definite and specific kind of return is expected, how mostsecurely to motivate and tie the other party into making not only some return at all

but, moreover, that specific return?

Hence the development of a promising convention. The language of promising marksout the commerce of self-interested exchange. And according to this conventionwhenever someone uses a certain distinctive mode of expressing an intention to do A,such as by saying I promise, they are thereafter to do A, at the risk of not being

trusted by potential cooperators again if they do not.

In order, therefore, to distinguish those two different sorts of commerce, the interested andthe disinterested, there is a certain form of words invented for the former, by which we

bind ourselves to the performance of any action. This form of words constitutes what wecall a promise, which is the sanction of the interested commerce of mankind. When a mansays he promises any thing, he in effect expresses a resolution of performing it; and alongwith that, by making use of this form of words, subjects himself to the penalty of never

being trusted again in case of failure.A Treatise of Human Nature, Book III, Part II,section v, Of the obligation of promises pp521-3

By using the expression I promise, a counterparty becomes motivated by self-

interest, thanks to the threatened penalty, to reciprocate in the way promised. He thenbecomes a really credible exchange partner, and both sides can then embark on amutually advantageous pattern of exchange:

A resolution is the natural act of the mind, which promises express: But were there nomore than a resolution in the case, promises woud only declare our former motives, andwoud not create any new motive or obligation. They are the creations of men, whichcreate a new motive, when experience has taught us, that human affairs woud beconducted much more for mutual advantage, were there certain symbols or signsinstituted, by which we might give each other security of our conduct in any particularincident. After these signs are instituted, whoever uses them is immediately bound by hisinterest to execute his engagements, and must never expect to be trusted any more, if he

refuse to perform what he promisd.

All of them, by concert, enter into a scheme of actions, calculated for common benefit,and agree to be true to their word; nor is there any thing requisite to form this concert orconvention, but that every one have a sense of interest in the faithful fulfilling ofengagements, and express that sense to other members of the society. This immediatelycauses that interest to operate upon them; and interest is the first obligation to the

performance of promises. A Treatise of Human Nature, Book III, Part II, section v,Of the obligation of promises pp521-3

As benevolent agents capable of concern for others and the common good, we seethat everyone benefits from the existence of the promising convention. The

promising convention does what needs to be done: to mark out actions expressive notof gratuitous generosity and friendship, but performed self-interestedly out of

7/29/2019 Pink10

14/35

14

expectation of exchange; and to ensure that that exchange is in fact made And as aresult the hoped for non-simultaneous exchanges are facilitated. And so, with thecommon good in mind, we come to view the keeping of promises as morallyobligatory, and come to see fidelity to promises as a moral virtue:

Afterwards a sentiment of morals concurs with interest, and becomes a new obligationupon mankind. This sentiment of morality, in the performance of promises, arises from

the same principles as that in the abstinence from the property of others. Hume ATreatise of Human Nature, Book III, Part II, section v, Of the obligation of

promises pp521-3

5. Criticism of Hume

I have presented the issue of the artificiality of promising as being about theobligations and rights that fidelity to promises conforms to and respects. Are these,as Hume supposes, the product of a convention or practice a practice that originallyserved purposes other than that of respecting such rights and obligations? Or are theobligations and rights prior, and is it these that have in large part shaped the practiceof promising? Obviously one element in promising the language by which theconcept of promising and the intention to promise is expressed is conventional. Butthe involvement of convention in our capacity to oblige ourselves through promisesmight go no wider than that.

There is one obvious line of objection to Hume. Take the exchange of services, suchas those which Humes self-interested farmers provide by each helping with theharvest of the other. Is the obligation of one to make the promised return to thelabour provided by the other really unintelligible apart from an existing practice and

convention of making such a return? Hume is adamant that it is so unintelligible:

a promise is not intelligible naturally, nor antecedent to human conventions; and that aman, unacquainted with society, could never enter into any engagements with another,even tho they could perceive each others thoughts by intuition.

But is there not something immediately intelligible or natural about such anobligation, prior to the establishment of any practice, just as Locke supposed?

To make out the naturalness of the obligation, we do not have to appeal to a peculiarsupposed natural power that each possesses to impose obligations on himself at will.

We have no need to posit any such power. What instead we need is a kind of naturalright possessed by each to determine under what conditions he will provide goodsand services to others, at least in cases where he is not obliged to provide those goodsand services in any case. One function of promising is simply to acknowledge andrespect this right. I promise to you that I will help you with your harvest tomorrow ifyou help me with my harvest today. In so promising I recognize your right to makeyour help today conditional on the help being returned by me later.

For Hume, the idea of an obligation to reciprocate is only supposed to arise with thepractice of promising. And the practice of promising is only required in cases wherea simultaneous exchange is not possible and one has simply to trust the other to

perform. A practice then arises to motivate and guarantee the hoped forreciprocation. And from this practice the idea of an obligation to reciprocate as

7/29/2019 Pink10

15/35

15

promised then arises. Prior to the practice there is no obligation, and no right toexpect reciprocation or unjust denial of that right.

But, contrary to this, the idea of an obligation to make a return can surely be invokedimmediately, in relation to any exchange, simultaneous or otherwise.

Suppose Humes farmers find themselves in sight of each other, each standing bychance on the others property, but separated by a sudden river flood that neither canford, and that will diminish only after the sowing season is over. Each is in a positionto sow the others crops, and there is no one else to do the job. Even prior to theestablishment of any practice of promising, each can make it clear, by shouting outwhat he is willing to do, or through otherwise signaling or implying this across theflood, that he will sow the others fields, but only provided that the other reciprocates.And so, keeping their eye on the other, each sows, though only provided he sees theother still involved in sowing too. With each in full sight of the other, this looks likea case of simultaneous exchange. In which case it seems that as yet there is no need

of some special practice to tie either farmer into reciprocating. And so on Humestheory there is no room yet for any obligation or sense of such.

But supposing one of the farmers discovers later that despite all appearance, somehowthe other (a master illusionist) managed only to feign the effort and so avoidedactually sowing any seed at all. Is it not natural to suppose a sense of wrong in thediscoverer that he has not only been deceived but defrauded? It is as with any otherexchange. Each can see in themselves and others a right to determine under whatconditions he will do things for the other. Each can recognize the assertion of such aright, and each can recognize its violation.

To fail to respect that right through fraudulent deception is in fact as much aninvasion of anothers liberty as would one farmers actually physically forcing theother to sow his fields, supposing the farmer could do that. Even supposing nofurther injury were done to the farmer so compelled, he would still view his being socoerced as an intrusion on his liberty. And would we need a convention to see theapplication of such coercion as wrong? Surely if there is anything to Humes naturaland preconventional virtue of benevolence, forcing the other farmer to sow his fieldsunrewarded would be contrary to the natural duty towards others that both Pufendorfand Hume defend against Hobbes. Why then the need for a convention to make senseof the wrongfulness of producing the same result by a deception?

Plausibly, natural morality requires us to make certain goods and services available to

others in sufficient need - and to do so whether or not we ever agreed to, or whetheror not any convention has arisen of so helping others. But beyond these duties andgranted their extent, it is equally natural to suppose that natural morality affords us acertain liberty. This liberty involves an obligation on others under normal conditionsnot to coerce us or to force us into action against our will. And it involves our

possessing a natural right, within limits, to determine for ourselves what further goodsand services we provide for others, and under what conditions. Now a failure throughdeceit to deliver a clearly insisted on and acknowledged reciprocation to some servicegiven by us is as immediately recognizable a violation of this right as is the use ofoutright force to extract that service from us without return. A function of the

7/29/2019 Pink10

16/35

16

practice of making and keeping promises is not to create that right, but to recognizeand respect it.8

So one criticism of Humes theory of promising is this. Hume, like Pufendorf, isconcerned to occupy a position in moral theory that is not Hobbesian that does not

leave all our obligations towards others the products of agreement or convention. Inparticular, there are pre-conventional standards of humanity and benevolence towardsothers that preclude various forms of coercive interference in their lives. But Humewants at the same time to maintain that the morality of fidelity to promises in thecontext of exchange is wholly artificial, and generated by practices originally directedsimply to the furtherance of self-interest. Yet surely, it is rights under naturalmorality that the practice of fidelity to promises protects. For if people had no naturalright not to be defrauded of their goods and services, why should they possess anynatural right not to be coerced into providing them just for the whim and convenienceof another? If even when unaccompanied by any further injury, such coercion iswrong in itself, and naturally wrong, then so must be the fraud. The coercion and the

fraud are both wrong in the same way as an intrusion on the agents natural libertyto determine what he does with his own.

Hume takes our existing practice of making and keeping promises to have arisen in itspresent form to facilitate self-interested exchanges; and he claims that this presentform has then created and shaped moral obligation in respect of promises. But ofcourse if promising had all along been about the facilitation of self-interestedexchange, convention and practice in relation to promising might well have taken adifferent form. The convention might not just have been to keep promises at the riskof not being trusted again should they be broken. The convention might also have

been that promise breakers definitely should not be trusted again, at least for someroughly specified interval. Such a convention would certainly be a highly effectivefacilitator of reciprocal exchange. For there would be the less incentive for any

promise breaking, and so people could enter into and perform first under agreementswith the greater confidence of a return. And on the Humean view if such aconvention did come into existence, and everyone really did benefit from the strictadherence to it, it would be adherence to this convention that would come to count asmorally obligatory. And then of course there would be two moral obligations inrelation to promises on the promise maker to deliver, and on third parties and the

promisee never to let the promise maker get away with failing to play his part.

But this hypothetical convention, no matter how useful a facilitator of mutuallyadvantageous exchange it might be, has nothing to do with promising as we ordinarily

understand it. Indeed it seems absurdly morally oppressive on promisees and thirdparties. On our understanding, in relation to promises only their maker can actuallybe obligated - to doing what he promised. Others are at perfect liberty to trust himagain should they so choose. But that is because what we are dealing with is not aconvention serving simply to facilitate exchanges among the self-interested. We are

8 Notice that neither farmer has had to use terms such as I promise. The right to

determine under what conditions one provides ones services and goods to otherspreexists the use of such terms as I promise, and can be understood and assertedwithout them. It is this preexisting right that helps make the practice of promisingintelligible. As I suggested earlier, the ability to incur what are in effect promissoryobligations does not depend on linguistic terms such as promise, but can beexercised prior to and independently of such terms.

7/29/2019 Pink10

17/35

17

dealing with a practice that asserts and respects preexisting rights. And only thepromise breaker has actually done wrong by denying anyone their right the right todetermine the conditions under which they provide services and goods to others.Indeed the true basis of the promisee's right to the return promised him - his liberty todetermine for himself what he does for others and on what conditions - precisely

involves, by its very nature, a right not after all to insist on that promised return.

In fact the fundamental implausibility of Hume's theory becomes even more evidentwhen we examine social reality, and note how very different from each other are theactual practices involved in promising and property - two parts of morality and social

practice that Hume himself repeatedly likens and seeks theoretically to assimilate.9The institution of property does indeed seem to involve a carefully maintained set ofconventions of just the kind that Hume's theory would require. People do generallyand reliably adhere to rules determining ownership of objects; and are reliably

penalised in various ways if they are ever caught out in breach of those rules. Butthere is no analogous and equally reliably maintained convention of doing what one

has promised with a real risk of being penalised should one ever break one's word.You promise me that in return for getting into my edited collection, you will supplythe paper by month end. For no sufficient reason, you break your word - but Iexercise my right to forgive the breach and offer an extension to the deadline, whichagain you promise to meet. And so it goes. You repeatedly fail to act as promisedand I repeatedly fail to penalise you for your failure. In my experience this sort ofthing can go on for several years. There is nothing recognisable in this case asobservance of Hume's promising convention. The Humean convention of doing whatone has promised at the risk of being penalised if one does not is in many areas oflife, to a very large degree, a fiction. If the rights of promisees, which those

promisees have the option of not insisting on, are real, they cannot depend on such aconvention's being generally established and maintained.

There are uses of locutions associated with promising in the context of agreement thatdo not so clearly invoke plausibly natural or pre-conventional rights and obligations.This is the use of locutions like lets agree to simply as a coordinatory device.When involved in nothing more than the mutual coordination of our actions, we tendto say, not, lets promise to but lets agree to. For example, faced by a numberof plausible meeting places, and anxious to settle on one in particular, I might say toyou: lets agree to meet up again at the town hall rather than at the opera house.And I think this use of Lets agree to is distinctive. For in this case there is no realexchange of goods or services. This is not a case of each party getting something thathe wants in exchange for giving the other something else that they want. In this case

we both want exactly the same outcome that we meet. All that agreeing here doesis leave a particular meeting point mutually salient, enabling us both to meet shouldwe continue to wish to do so. And if one of us does not turn up, because they nolonger wish to meet, the other may feel frustrated or a bit let down. But I doubt theywill feel denied something they had a right to that they have been done out ofsomething or robbed as the deceived farmer might feel done out of the sowing of hisfield. Here lets agree to is simply a means of coordinating our activities to somecommon end. But here of course, there need be no serious obligation unless wewere under an obligation to attain the end in the first place. But perhaps we arent so

9This sentiment of morality, in the performance of promises, arises from the same principles

as that in the abstinence from the property of others. HumeA Treatise of Human Nature,Book III, Part II, section v, Of the obligation of promises pp521-3

7/29/2019 Pink10

18/35

18

obliged; the end is simply that of continuing, say, a mildly interesting conversation,and continuing it would be nice, but hardly obligatory on either party. Finnis mayhave this in mind when he describes promising as a practice or convention with acoordinatory function:

So with promises. A certain set of facts affords an opportunity of answering to a standingneed of the common good, the need for individuals to be able to make reliablearrangements with each other for the determinate and lasting but flexible solution of co-

ordination problems...Natural Law and Natural Rights pp 306-7

But it cannot be that all promising and agreeing is like this nothing more than adevice for enabling mutually advantageous coordination. So understood, promisesand agreements might generate reasons for acting as promised. But it would be hardto see why these reasons should characteristically be obligatory. If we are not obligedto pursue an end, such as meeting to continue a conversation, why should wesuddenly be obligated to its pursuit by some device that simply enables us to pursuethat same end more efficiently? On the other hand much agreement and exchange of

promises clearly does induce obligations; and that is because it is about somethingvery different from coordinating action, something that is clearly obligatory by itsvery nature - recognizing and respecting a pre-existing natural right, to determine theterms of an exchange.

But there is now a problem; and this is a problem which faces not only Hume but alsothe believer in a natural right to impose conditions on ones services and provisions toothers. This is the phenomenon of gratuitous promises, made without expectation ofreturn, in the context not of mutually self-interested exchange, but out of simplecharity or friendship.

Here I promise to someone in need, or to a friend, that I will help them, without anyexpectation of return. So I am neither asserting nor recognizing anyones right toimpose conditions on their services to me or to others. I am simply committingmyself to provide such services gratuitously. And do not such promises oblige? Butif I do wrong in breaking them, this is certainly not because I have breached the

promisees right to determine the conditions under which they provide goods andservices to me.

Both Pufendorf and Hume see promising or agreement as facilitating exchangesbetween the self-interested. The involvement of promises is supposed to distinguishthese self-interested exchanges from those involving the more generous and noble

intercourse of friendship and good offices. But gratuitous promises promisesunaccompanied by a corresponding expectation, let alone obligation, of reciprocation

are common and a central feature of friendship. These are definitely thought tooblige.

Here we see a fundamental difference between Pufendorf and Hume and indeed muchof the Protestant or modern school of natural law on the one hand, and the Catholicnatural law tradition on the other. The Catholic natural law tradition was also deeplyinterested in promises involved in contracts or exchanges. For most of thosecontributing to that tradition were either involved in hearing confessions, or in

providing advice to confessors. And in the great commercial cities of the early

modern Catholic world, from Cartagena to Seville, from Naples to Cologne andAntwerp, confessions in relation to various kinds of contract raising the issue of

7/29/2019 Pink10

19/35

19

whether these contracts should have been agreed, or kept, or broken were part of theeveryday experience of any cleric giving the sacrament of penance. So a treatment ofcontracts and promises in relation to exchange was a vital part of the moral theologyof promising. But Catholic natural lawyers had no difficulty with giving equalattention to promises made as expressions of altruism or friendship. And this was not

surprising since most Catholic natural lawyers had a very personal experience of andconcern with such promises. For they had all made such promises to one friend inparticular. They were generally priests and in many cases were also vowed membersof religious orders. And as such they had all made promises, of gratuitous self-commitment, to God who was their loving friend. So besides discussions of promisesin relation to contract there were also discussions under the categories of vota anddona of vows and gifts.

And the same underlying theory was applied in all cases. Promises in the context ofexchange or contractual promises were not treated as a special case; and certainlythey were not treated as the central or defining case of promising.

This underlying general theory might sometimes, as in Liguori, be the unfortunatetheory of a mysterious natural quasi-legislative power to oblige oneself throughwilling such an obligation, and then expressing or promulgating ones will. Thisseems not to be a good theory. But can we do better?

6. Grotius, transference theory and contract

Some Protestant natural lawyers, such as Grotius, rather than founding property onpromising as Pufendorf did, took property, or at least quasi-ownership rights overones own self and labour, to be part of natural morality. They then explained theobligation to keep promises by assimilating the making of a promise to a form of

property transference. On this view, since we naturally have ownership or quasi-ownership rights over our own labour and powers, by promising we can transfer theserights to others. And it is in virtue of transferring these rights to others that weobligate ourselves to them to act as we have promised:

There is the further fact that ownership of property can be transferred by an act of willwhich is sufficiently manifest, as we have said above. Why then, since we have equallyright over our actions and over our property, may there not be transferred to a person

alsothe right to do something? Hugo Grotius, On the Law of War and Peace, Book2, Chapter 11, On promises, (para 3, p 329 translation by F. W. Kelsey, Oxford:

Clarendon Press 1925)

Can the power to oblige oneself through promising be made sense of in these terms?Such an account, if defensible, would certainly take in gratuitous promises, as well as

promises involved in exchange. But the obligation attaching to promises seems not towork in this way.

Suppose I promise to X to do nothing but work all day tomorrow on his garden; andthen, without revealing this earlier promise, I go on to promise exactly the same thingto Y. Whether I am making these promises gratuitously, or in each case I am makingthe promises as parts of some exchange, as a return for things done for me by each of

X and Y, it seems that through so promising I can obligate myself to each. Each of Xand Y gains a right to my labour tomorrow on their garden. But how can the transfer

7/29/2019 Pink10

20/35

20

theory explain this? According to the transfer theory, any ownership right over mylabour or liberty in relation to gardening activities tomorrow has already beentransferred to X. So what is there left to transfer to Y?

This criticism attaches to any theory that explains the obligation on me as promisor to

keep my promise and the right of a promisee to that promise being kept in terms ofthe transference of something peculiar to me in relation to my action rights,ownership, authority to the promisee.10 For since I have already transferred away

the right or ownership or authority over what I do tomorrow that could havegenerated an obligation to Y to garden for him, according to the transfer theory Y hasonly one ground of complaint against me: that I have fraudulently misrepresentedmyself as being in a position to obligate myself to him to act as promised. And in facthe has this ground of complaint whether or not I fulfil my promise to him. But thatseems absurd. Surely Y would feel himself aggrieved and wronged only if I failed todeliver on my promise precisely because it was to doing that that I had obligatedand committed myself. It is thatfailure he would want me to make up to him, as the

wrong done to him, not some fraudulent misrepresentation as to the availability andtransfer of a right.

And this reminds us of the lesson of the doctor-patient example with which we began.The promisee need not be, in most everyday cases will not be, concerned withreceiving rights over the promisor.11 The promisees first concern will in general not

be with whether the promisor is managing to put himself under an obligation. Thepromisees immediate understanding of a promise is as involving an offer not anyordinary offer, but still an offer; and the offer is of the action promised, not of somemoral obligation to perform it. What the promisee expects, then, is delivery on thisoffer. And it is only when delivery fails to occur that the promisee will then startthinking about having been wronged precisely by that non-delivery.

In our example since I cannot keep my promise to both X and Y, only one of thepromisees can obtain performance of the action promised. And it looks as though it ishardly arbitrary which promisee this should be. Other things at least being equal, Ishould do the garden of X rather than Y, since it was to X that I first promised myhelp. But of course this does not show that in thereafter making the same promise toY, Y acquired no right to the same service as X. Rather, when I have a like obligationto both X and Y, and it is or becomes impossible to meet both obligations, then otherthings being equal we do allow priority by whom was the right acquired first todecide which obligation should be met. But this does not show that the other did not

possess the same right too. For example, Ys right and my obligation to supply it still

10 Such a transfer theory is defended by David Owens in A simple theory of

promising Philosophical Review 2006. According to him, promissory obligationinvolves the transfer of the promisors authority over his action to the promisee: In

promising you a lift, I grant you the authority to require me to give you a lift.to useKants metaphor, in accepting my promise you take possession of my choice. p71

11 In A simple theory of promising pp71-2, Owens claims that when the promisee

(supposedly) acquires an authority over the promisor, or takes possession of thepromisors choice, so that the promisor is obliged to perform, this authority issomething that the paradigmatic promisee wants for its own sake. I doubt this isgenerally true.

7/29/2019 Pink10

21/35

21

exists, and immediately determines what I should have to do were X, for some reason,to release me from my promise to him. Obviously I should then have to do Y'sgarden, because my promise to Y had already and directly given Y a right to that, andthere would no longer be any prior commitment to X standing in the way. Againeven if X does not release me from my promise to him, Y's right and my obligation to

supply it still exists to determine how I shall need to make things up to Y if I dogarden for X. What has to be made up to Y is clearly my failure to do Y's garden, theaction promised. For it was to the performance of that very action promised that Yacquired a right, just as did X beforehand.

Y in regarding himself as having a right to my performance of the action promised, istreating the promise as a mode of commitment a commitment to deliver on my

promise. And commitments and the obligations associated with them are quitedifferent from transfers. For while one cannot over-transfer, one certainly can over-commit. And this seems true whether a promise is made gratuitously, or whether it ismade in the course of some exchange. I can over-commit by a series of promises

made as a favour. But I can also over-commit by entering into multiple agreements toexchange goods and services, dishonestly or recklessly making a series of offers ofreturn that cannot be honoured all together.

There are cases of promise or agreement where the transfer model might apply.These are usually cases where the agreement constitutes a transfer of some propertytitle, and where once one such agreement has been made in proper form, allsubsequent agreements by the initial transferor purporting to transfer the same titleare by the very fact of the first invalidated. Certain forms of contract in a housingmarket might constitute just such forms of title transfer. Arguably, an exchange ofvows in marriage could also be understood take the same form a form in which each

party transfers themselves to the other, thereby (at least in the absence of anysubsequent cancellation of the contract) invalidating any further such exchange ofvows either party enters into with a third. Contrast the exchange of vows in actualmarriage with a prior promise to marry, which simply commits the promisor to afuture transfer, and where over-commitment is possible.12

7. Gratuitous promises and liberty

We have yet then to arrive at any general understanding of promises that aregratuitous that are made not as part of an exchange but, it seems, for nothing inreturn. Such promises appear to be, and often are, made out of sheer altruism and

generosity or out of friendship. It is important that, as the Catholic natural lawyerswell understood, such promises are very frequently made and they can be asobligatory as any.

12 I notice that in this connection Liguori distinguishes between vows that are solemn

and those that aresimple. The former invalidate all further vows of the same kind toother parties, the latter may render all such further vows immoral or illegal, but notinvalid. Liguori mentions marriage vows and vows of religious celibacy (a kind ofmarriage to Christ or to his church) as falling into the category of solemn vow. Thisdistinction seems to demand explanation in terms of a distinction between vows or

promises that effect a kind of title transfer, and those that merely commit.

7/29/2019 Pink10

22/35

22

Some modern philosophers are still inclined to dismiss the gratuitous case as agenuine source of moral obligation on the promisor. This may in part be a legacy ofPufendorf and Humes philosophical preoccupation with self-interested exchange.But important also is English contract law, where promises made for nothing,without consideration, are prima facie not enforceable. Thus Patrick Atiyah,

previously the author of an authoritative An Introduction to the Law of Contract,nicely expresses, when writing on the moral obligation to keep promises, thecharacteristic outlook of the civil bar in disparaging the gratuitous case:

Many gratuitous promises to do an act of kindness to a friend or relation may, it is said,not be in any real sense obligatory on the promisor prior to the giving of the promise. Ifthat is indeed the case, then the conclusion must surely be that the promise itself makesvery little difference to the situationThe more gratuitous the promise is, the less it isrequired by some pre-existing obligation, the less binding it seems to bethe general

picture I have tried to draw suggests that the grounds for regarding unilateral promises as a

source of binding obligations are very weak. P.S. Atiyah, Promises, Morals and theLaw (Oxford 1981), pp213-215

Now whatever the legitimate constraints on their legal enforceability13, it is not

plausible that promises made out of kindness to friends do not oblige morally, or aresomehow peripheral to the practice of promising, or are mere echoes of a central

practice of making and keeping promises in exchange for some return. To make apromise to a great friend, and to make it just out of friendship, is a very plausible wayof obligating oneself to that friend. People who break such promises made to friendsare very intuitively wronging them. It may be that friendship brings with it priorobligations of an imperfect sort obligations to some things or other for friends. Butthese initial obligations are imperfect. I am under no obligation to do any particularthing. Gratuitous promises change this situation. They effect the crystallization of

these imperfect obligations into definite, perfect obligations to do this rather than that to perform precisely the action promised rather than any other. And this obviouslypresents us with a deep difficulty. For the theory of promissory obligation we have sofar developed applies only in the context of exchange, appealing directly as it does toa right to determine the conditions under which we make our goods and servicesavailable to others.

It might be tempting to resolve this difficulty in the following manner. What are themoral implications of the existence of a right to determine, within limits, theconditions under which we make our goods and services available to others? Wehave viewed such a right as constituting a certain natural liberty: within the limits set

by our obligations to others, we have a right to determine for ourselves what we do,and especially how we dispose of our selves and our resources and goods. Theinfliction on us of coercion and fraud by others is wrong because an assault on thisliberty. But if we have this liberty, can we not voluntarily lay it down? Can we notobligate ourselves to others at will? If so our ability to obligate and commit ourselvesthrough gratuitous promises is in the end related to our capacity to obligate ourselves

13 I consider issue of legal enforceability elsewhere, as part of a more general

treatment of the relation between moral obligation and legal obligation. Some generalintroductory remarks on the relation between moral and legal obligation are to befound in my Moral obligation, inModern Moral Philosophy ed A. OHear, pp 159-85, Cambridge University Press 2004; and in my Reason and normativity, Journalof Moral Philosophy, November 2007.

7/29/2019 Pink10

23/35

23

through promises in the context of exchange. In each case the obligations involve theliberty of the individual whether the surrender of that liberty by the promisor, or aduty to respect that liberty in a promisee.

This proposed resolution is attractive. But it is, I suggest, misconceived. There may,

as we have indeed supposed, be such a liberty. But, as we are now about to see, wemay not be able to lay it down at will, obligating ourselves just through intending to.And secondly, how do we incur the obligation? What is involved in laying down ourliberty in these cases, such that we are left with an obligation to someone else?

In the context of exchanges we can see what explains the loss of liberty when throughpromising we lose it. The loss of our liberty may be explained by our duty to respectthat of another, and the conditions he has placed on those of his services that we havechosen to accept. But no such explanation is available to cover gratuitous promises.There the obligations are not incurred to respect any conditions placed on what wehave received. Nor can the laying down of ones liberty involve any transfer of rights

to others, for the reasons we have seen. But if laying down ones liberty to othersdoes not involve transferring rights to them, what does it involve when gratuitouspromises are in question? Clearly, to lay down ones liberty involves coming to havean obligation to those others, where one was unbound by any obligation previously.But how then does the obligation arise? No story has been given, and the appeal toliberty here does no explanatory work, but merely asserts that we have somehow a

power to obligate ourselves.

Notice that our power to obligate ourselves through gratuitous promising is notevidently unlimited. It certainly seems not to display any very simple power to laydown our liberty or obligate ourselves at will. For not all gratuitous promises obligatethe promisor with equal obviousness, even when the promised service is accepted bythe promisee and even when the promise is accompanied by a genuine intention onthe part of the promisor to obligate himself. And this is so even when there is nocoercion, fraud, or immorality in what is promised, nor any harm to the promisee.

Suppose in the financial district I approach a complete stranger in the street, someoneentirely unconnected to me, who is prosperously there employed and in no obviousneed of funds. Out of my own whim, and specifically in order to obligate myself -

being so obligated would be interesting, I think, and so, pursuing this interest, I reallydo intend to bring this state of obligation about - I promise to give him 20 withinhalf an hour, and he accepts the promise of the money. (Why should he not accept? -he may not really need the money, but every little helps, and I, as a clear eccentric,

might just deliver on my promise.) Am I obliged to deliver the money? If I fail tohand the money over, will I have actually wronged the promisee? It seems at leastdebatable. If the moral obligation does exist at all, it is not obviously a very seriousone. Even if the promisee would be wronged by my failure to deliver on my promise,it is not clear that the wrong would be significant. And it is at least arguable that no

binding obligation exists at all. Yet if I did have the power to obligate myself at willthrough promising, then given my genuine intention to obligate myself in this case,surely my obligation to act as promised would be as clear in this case as in any?

Compare other examples of gratuitous promising that clearly are obligation-inducing.Consider, for example, a case where I promise a great friend that I will attend the

exhibition of his latest artwork. (Note the difference if the friend is not so great.Perhaps the obligation would be less serious because of that - a point to which I shall

7/29/2019 Pink10

24/35

24

return.) Or consider a case where I promise a favour to a social acquaintance or awork colleague. Or consider a case where I promise a stranger in obvious need that Iwill help him, with money or in some other specific way. In all these cases the

promises are similarly gratuitous, but clearly do oblige. Breach would much moreplausibly constitute a significant wrong done to the promisee. Yet the difference

between these cases and the first has nothing to do with some supposed power on mypart to give up my liberty or to obligate myself at will a power which if present atall would be present and operative in all three cases equally.

Certain social contexts such as acquaintance, shared employment, friendship,especially serious friendship, or need in a stranger these make the obligating natureof gratuitous promising particularly clear, and as intelligible as in any case ofexchange. Clearly something else is generating the obligation beyond a will on my

part to obligate myself. And, remember, as the case of the doctor and his patientshowed, even in sincere promising such a will to obligate oneself need not be presentanyway.

8. Promises as invitations to trust

I shall now argue that gratuitous promises involve a distinctive way of relatingoneself to another. And I think this mode is as much present in factive promises or

promises that, as in performance promises or promises to. Recognizing andunderstanding this form of relation will enable us to understand how gratuitous

promises to act generate moral obligations to act as promised. But it will alsouncover what is common to bothpromises to andpromises that, and explain why wesee and speak of both cases as equally cases of promising.

The mode of relation involves, first, the promisor making an offer to the promisee of information in the case ofpromising thatand of future action or performance in thecase ofpromising to. In the case of the information provided inpromising that, whatis offered the conveyance of information or a truth - is provided simultaneously, if itis to be provided at all. The very act of promising will have provided it, and all the

promisee or recipient can do is fail to believe. Withpromising to things are different,and the offer is not yet delivered, and so there is room for the promisee to refuse whatis offered before delivery. If the promisee accepts, or at least does not refuse, thesincere promisor will thereafter become motivationally committed to deliver. That is,he will remain motivated to deliver what has been offered subject to the promiseescontinued wish to receive it.

What else is in common to the two cases besides an offer? In addition to the offerthere is an invitation to trust the offeror in relation to his offer and its genuineness.Trust here involves two connected elements. It involves not only relying on the

promisor to deliver, but also obtaining comfort and reassurance from the promisor inrelation to the delivery. More specifically the promisee is invited to take a twofoldtrust in the offeror. The promisee is invited to rely on, and to take comfort andreassurance from, both the promisors motivation and his capacity to deliver.

7/29/2019 Pink10

25/35

25

the common essence of promising

(1) Offer (of information or of action)

+(2) Invitation to trust in the offeror:

specifically in

- the offeror's motivationto deliver what is offered

- the offeror's capacity

In the case of factive promising that the promisee is invited to trust, first, in thepromisors motivation to tell the truth in his honesty. Secondly, the promisee isinvited to trust in the promisors epistemological capacity or reliability in his abilityto get his assertion right. Notice this invitation to trust is not part of everydayassertion. For whilst in the context of serious conversation assertors are supposed toassert what they really do believe, they do not thereby, just through asserting, actuallyinvite conversational partners to put their trust in the sincerity of the assertor. Stillless are conversational partners invited, just through the act of assertion, to put theirtrust in the epistemological capacity or reliability of the assertor.

Not only is the addressee not necessarily invited to trust in or rely on the assertorssincerity or reliability; there are contexts of serious assertion in which such trust orreliance would be uncalled for or even inappropriate. Thus in a debate or argument,the truth of what is asserted may well be argued for simply on the basis of thesupposedly evident truth of other propositions asserted, and not on the basis of anyappeal to the assertors own sincerity or epistemic competence. Whereas factive

promising is quite different. Someone who insists, in the face of scepticism whethersomething that they witnessed really happened: I promise you, it did, I saw it happenwith my own eyes, is exactly inviting trust both in their own truthful motivation andin their capacity to get what really happened right.

In the case ofpromising to, the invitation to trust is again twofold. First, as before,the promisee is invited to trust in the promisors motivation - in this case in theircontinuing motivation to deliver on the offer for as long as the promisee wishes that

7/29/2019 Pink10

26/35

26

they should. Secondly they are again invited to trust in the promisees capacity inthis case in the promisees ability to provide what they have offered. The secondinvitation and its object is just as important as the first. When I promise to dosomething for you, I am inviting you to trust not only in my willingness to do it, butin my implied assurance of my actual ability to do it. Which is why it seems so

dishonest to make promises which, no matter how motivated one may be to act aspromised,