Scanlon on promissory obligation: The problem of promisees' rights

Journal of Philosophy

Volumn 101, Issue 2, 2004, Pages 83-109

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EID: 33744540383     PISSN: 0022362X     EISSN: 19398549     Source Type: Journal    
DOI: 10.5840/jphil200410126     Document Type: Article

References (44)

1. What We Owe to Each Other (Cambridge: Harvard, 1998), p. 315; hereafter WW.
2. For some reason the philosophical literature has focused on promises rather than agreements. This may be because it has long been thought - wrongly in my view - that agreements are constructed out of promises. On this see Margaret Gilbert, "Is an Agreement an Exchange of Promises?" this JOURNAL, XC, 12 (December 1993): 627-49
3. reprinted with some revisions in Gilbert, Living Together: Rationality, Sociality, and Obligation (Lanham, MD: Rowman and Littlefield, 1996), pp. 313-38. The precise nature of the relationship between promises and agreements is an interesting issue: my use of the phrase "close cousins" is not intended to beg any questions.
4. This last point, which I take to be intuitive, is common ground between theorists of otherwise different persuasions with respect to the nature of rights. See, for instance, H.L.A. Hart, "Are There Any Natural Rights?" Philosophical Review, LXIV, 2 (April 1955): 175-91;
5. Joseph Raz, "On the Nature of Rights," Mind, XCIII, 370 (April 1984): 194-214
6. (reprinted in Morton Winston, ed., The Philosophy of Human Rights (Belmont, CA: Wadsworth, 1989), pp. 44-60; page references here are to the original).
7. Cf. Michael Robins, Promising, Intending, and Moral Autonomy (New York: Cambridge, 1984), p. 99.
8. The qualification regarding special circumstances is intended to set aside, in particular, the cases of coerced promises or promises to perform immoral acts. I take it that these are best considered after one has an articulated understanding of less complicated cases. In what follows, the reader should assume that coerced promises or promises with immoral content are not at issue. I discuss coerced agreements in Gilbert, "Agreement, Coercion, and Obligation," Ethics, CIII, 4 (July 1993): 679-706
9. reprinted in Living Together, pp. 281-312.
10. "The Obligation to Keep a Promise," in Prichard, Moral Obligation and Duty and Interest (New York: Oxford, 1968), pp. 169-79, here p. 169.
11. If this is correct, it would seem that the special circumstances discussed in note 3 above either invalidate the promise - in other words, there is no promise in spite of appearances - or the promisor and promisee have the usual obligation and right, the special circumstances notwithstanding. I would argue for the latter alternative, but will not do so here - see Gilbert, "Agreements, Coercion, and Obligation," on the case of coercion.
12. A Treatise of Human Nature (New York: Oxford, 2000), 3.2.5.3.
13. Scanlon has developed this position in (at least) three places: "Promises and Practices," Philosophy and Public Affairs, XIX, 3 (Summer 1990): 199-226 (hereafter PP);
14. "Promises and Contracts," in Peter Benson, ed., The Theory of Contract Law (New York: Cambridge, 2001), pp. 86-117 (hereafter PC)
15. See also Scanlon's reply to John Deigh in Scanlon, "Reasons, Responsibility, and Reliance: Replies to Wallace, Dworkin, and Deigh," Ethics, CXII, 3 (April 2002): 507-28, pp. 522-28.
16. One contemporary philosopher who has argued against this assumption is Robins - see, for instance, "The Primacy of Promising," Mind, LXXXV, 339 (July 1976): 321-40.
17. Cf. Prichard. The existence of this problem for a variety of theories of promissory obligation is a theme of Robins's "Primacy of Promising." For the relevance of the problem to Scanlon's theory, see the text, below.
18. Observations in Hart, The Concept of Law (New York: Oxford, 1961), suggest that on a central everyday conception of a social rule something akin to a promise or agreement underlies social rules. I focus on these observations in developing a new account of social rules in chapter five of Sociality and Responsibility: New Essays in Plural Subject Theory (Lanham, MD: Rowman and Littlefield, 2000).
19. "Some Fundamental Legal Conceptions," Yale Law Journal, XXIII (1913-14): 16-59, see especially pp. 30-32.
20. Hart prefers to restrict the use of the term "obligation" for the directed duties that correspond to rights. He notes a broadening use of the term "obligation," however, such that "duty" and "obligation" are used interchangeably. See also Richard Brandt, "The Concepts of Obligation and Duty," Mind, LXXIII, 291 (July 1964): 374-95.
21. For emphasis of this point and discussion of its implications for moral theory see Hugh Upton, "Right-Based Morality and Hohfeld's Relations," Journal of Ethics, IV, 3 (January 2000): 237-56.
22. Roman law expresses the sense of such a tight relation by using one and the same word (Obligatio) for the duty of one party and the corresponding right of the other party to a contract. There was no special word for a right against a determinate person or persons. See George Long, "Obligationes," in William Smith, A Dictionary of Greek and Roman Antiquities (London: John Murray, 1875), pp. 817-21.
23. See "Are There Any Natural Rights?" p. 179, note 7, also p. 181. Others sometimes write of "owing a duty."
24. See, for instance, Hart, "Are There Any Natural Rights?" p. 181.
25. Compare the description Scanlon gives of (claim-) rights in general as rights to "command" particular things, where others have a correlative duty to "comply" in "Rights, Goals, and Fairness," in Stuart Hampshire, ed., Public and Private Morality, (New York: Cambridge, 1978), pp. 93-111.
26. Concordant thoughts are found in Hart, "Natural Rights," pp. 180-81;
27. also Joel Feinberg, "The Nature and Value of Rights," The Journal of Value Inquiry, IV (1970): 243-51, reprinted in Winston, ed., pp. 61-74, see p. 62.
28. Scanlon's statement that (in effect) a promisor is obligated "unless released" by his promisee may be thought to imply that action on the part of the promisee alone suffices to get rid of the obligation, whereas, according my (deliberate) characterization in this paragraph, action on the part of the promisee is necessary but may not be sufficient. For some congenial remarks on the insufficiency of action on the part of the promisee alone, see William Vitek, Promising (Philadelphia: Temple, 1993), pp. 101-02.
29. Jeremy Waldron has argued in favor of a right to do wrong. See Waldron, "A Right to Do Wrong," Ethics, XCII, 1 (October 1981): 21-39;
30. see also William Galston, "On An Alleged Right to Do Wrong: A Response to Waldron," Ethics, XCIII, 2 (January 1983): 320-24.
31. Waldron responds in "Galston on Rights," Ethics, XCIII, 2 (January 1983): 325-27.
32. I am myself inclined to the negative position. If one takes that position, and one believes, at the same time, that wrongdoers could do with rebukes from others, at times, one is likely to take a special interest in discovering how, in general, people gain the standing to rebuke one another that promises, among other things, seem to provide. This is a theme of Gilbert, "Shared Values, Social Unity, and Liberty" (manuscript).
33. I use the phrase "common knowledge" in roughly the sense of David Lewis, Convention: A Philosophical Study (Cambridge: Harvard, 1969).
34. For an elaboration of my own, see Gilbert, On Social Facts (Princeton: University Press, 1989).
35. For some observations that suggest that he does not, see the discussion of Scanlon's use of "owing" in Frances Kamm, "Owing, Justifying, Rejecting," Mind, CXI, 442 (April 2002): 323-54, at pp. 333-36.
36. See "On the Nature of Rights." I here include under the broad label "beneficiary theory" all those theories that make central to their account of rights the benefits, intended benefits, or interests of the putative right holder. Such theories may differ in important ways among themselves. Raz notes that his definition of a right "draws on several elements of analyses of rights which stem from Bentham's beneficiary theory" (p. 195, note 3). Among contemporary theorists, Raz cites Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), p. 100;
37. D.N. MacCormick, "Rights in Legislation," in P.M.S. Hacker and Raz, eds., Law, Morality, and Society (New York: Oxford, 1977), pp. 189-209;
38. and, especially, Keith Campbell, "The Concept of Rights" (D.Phil, thesis, Oxford University, Bodleian Library, 1979).
39. See, for instance, Richard Arneson, "Against Rights," Philosophical Issues, XI (2001): 172-201, see third paragraph.
40. The formula "X counts as Y" plays a large role in the account of social institutions in John R. Searle, The Construction of Social Reality (NY: Free Press, 1995).
41. See also Searle, Speech Acts: An Essay in the Philosophy of Language (New York: Cambridge, 1969).
42. See Gilbert, Sociality and Responsibility, chapter 5.
43. A similar drift, not directed at Scanlon in particular, is to be found in various writings - see, for instance, Prichard, "The Obligation to Keep a Promise"; Robins, "The Primacy of Promising"; and, in relation to Scanlon, Michael Pratt, "Scanlon on Promising," Canadian Journal of Law and Jurisprudence, XIV, 1 (January 2001): 143-54, of which I learned after formulating similar points (Gilbert, "Moral Obligation and Agreement" (manuscript), presented at the University of Connecticut/Storrs, spring semester 2001).
44. I have sketched such an account in various publications. These focus on agreements rather than promises, but suggest an interpretation of promises as well. See, for instance, my articles, "Is an Agreement an Exchange of Promises?" "Agreements, Coercion," and "Obligation and Joint Commitment," Utilitas, XI, 2 (January 1999): 143-63