Promises, contracts and voluntary obligations

Law and Philosophy

Volumn 26, Issue 6, 2007, Pages 531-574

  Pratt, Michael G ^a  

^a QUEEN S UNIVERSITY   (Canada)

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EID: 34548772443     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-006-9003-1     Document Type: Article

References (146)

1. See, e.g., Raz, Joseph, 'Promises in Morality and Law', Harvard Law Review 95 (1982): 916.
2. For the view that agreements are different in kind from promise-exchanges, see Gilbert, Margaret, 'Is an Agreement an Exchange of Promises?', J. Philosophy 90 (1993): 627
3. and De Moor, Ann, 'Are Contracts Promises?', in Eekelaar J. and Bell J. (eds.), Oxford Essays in Jurisprudence (Clarendon, 1987), p. 103.
4. 'The traditional and still orthodox view of the nature of contractual obligations is that they are self-imposed promissory obligations.' Smith, Stephen, Contract Theory (Clarendon, 2004), p. 56. (Emphasis in original.)
5. When contractual liability is described by jurists as 'promissory,' it is the justificatory sense that is almost always intended. As Smith writes, the 'promissory' label 'emphasizes that contractual obligations are obligations that are created by the parties -that they are, in other words, " voluntary" or "self-imposed" obligations.' Ibid.
6. A recent search in the Philosopher's Index turned up 237 entries with 'promise' or one of its derivatives listed as a subject. Eddie, Yeghiayan's 1981 bibliography on promises runs to 37 pages: 'Promises: A Bibliography', Philosophical Research Archives 7 (1981): 1054.
7. This school takes its name from the title of Charles Fried's well-known 1981 monograph. As a description of its theoretical stance, however, the name is ambiguous between the two ways in which, as I pointed out earlier, contractual liability can be promissory. Most contract-as-promise scholars see contractual liability as promissory in a formal sense, but the school of thought is defined by its view that contractual liability is promissory in a justificatory sense.
8. Charles Fried's is the best-known moralistic theory of contract. The central thesis of his now classic work, Contract as Promise, is that 'since a contract is first of all a promise,
9. the contract must be kept because a promise must be kept.' Contract as Promise (Cambridge, MA: Harvard University-Press, 1981), p. 17.
10. As to why promises ought to be kept, Fried invokes the 'promise principle, [whereby] persons may impose on themselves obligations where none existed before.' Ibid, at 2.
11. For an insightful criticism of Fried's account of promise, see Kimel, Dori, From Promise to Contract: Towards a Liberal Theory of Contract (Oxford: Hart, 2002), p. 8. Stephen Smith has recently proposed a different moralistic account of contract as promise. 1 discuss his theory of promise later in the paper.
12. H.L.A. Hart wrote that the duties that attach to an office or role in social life, such as the duty of a husband to his wife or of a father to his child, are 'assumed by entry upon the particular role...' 'Legal and Moral Obligation', in A.I. Melden (ed.), Essays in Moral Philosophy (Seattle: University of Washington Press, 1958), p. 82 at 103-104.
13. See also Hart, H.L.A., 'Are There Any Natural Rights?', Philosophical Review 64 (1955): 175 at 183.
14. th ed., 1775, Book 1, Chapter 16.
15. Raz, Joseph, 'Voluntary Obligations and Normative Powers', Proceedings of the Aristotelian Society, 46(supp.) (1972): 79 at 97. (Emphasis added.) Elsewhere Raz provides an example of someone relocating to a town that levies a local tax on all residents. Taking up residence in the town is avoidable behavior, and anyone who moves there will (let us suppose) be aware of the tax. But on the voluntarist view the tax obligations that 1 assume by taking up residence in the town arenot voluntary, certainly not in the sense that the obligation of a promise is voluntary.
16. See Raz, (1982, p. 929).
17. Dalrymple, James, 'The Institutions of the Law of Scotland', in D.M. Walker (ed.) (Edinburgh: University of Edinburgh Press, 1981), p. 100.
18. Dalrymple (1981, p. 195, 197)
19. Hart (1958, p. 103). Hume wrote that the obligation of a promise 'arises from our mere will and pleasure.' Hume, David, A Treatise of Human Nature, in D. Norton and M. Norton (eds.) (Oxford: OUP, 2000), p. 332.
20. A contracting party's choice to bind herself is, as Gillian Hadfield observes, traditionally understood to be of 'constitutive' importance to her liability, since the 'very obligations that an individual is under in contract are [thought to be] a product of that individual's choice.' 'An Expressive Theory of Contract: From Feminist Dilemmas to a Reconceptualization of Rational Choice in Contract', university of Pennsylvania Law Review 146 (1998): 1235 at 1236.
21. Judicial references to the will of the parties as the source of contractual obligations abound. See, e.g., Lord Cough's remark in Henderson v. Merret Syndicates Ltd. [1995] 2 AC 145 at 194 that while tortious duties are 'imposed by the general law, contractual duties are 'attributable to the will of the parties.'
22. Raz (1982, p. 930)
23. On the concept of normative and legal powers generally, see Raz, Joseph, Practical Reason and Norms (Oxford: OUP, 1999), pp. 97-106;
24. Halpin, Andrew, 'The Concept of a Legal Power', Oxford Journal of Legal Studies 16 (1996): 129;
25. Evans, J., 'The Concept of a Legal Power', New Zealand Universities Law Review 11 (1984): 149;
26. Hart, H.L.A., 'Bentham on Legal Powers' Yale Law Journal 81 (1972): 799.
27. Kenny, Anthony, 'Intention and Purpose in Law', in R.S. Summers (ed.), Essays in Legal Philosophy (Berkeley: University of California Press, 1968), p. 146.
28. Kenny (1968, p. 150).
29. See, e.g., Searle, John, Speech Acts: An Essay in the Philosophy of Language (Cambridge: CUP, 1969), pp. 33-42.
30. Raz (1999, p. 103).
31. Andrew Halpin provides a nice discussion of this point. See Halpin (1996, pp. 142-143).
32. Hart (1958, pp. 101-103).
33. See Raz, Joseph, 'Reasoning with Rules', Current Legal Problems 54 (2001): 1 at 3ff.
34. Raz (1999, p. 102).
35. 'Obligation' derives from the Latin ob, 'towards,' and ligare, 'to bind.'
36. Bittner, Rüdiger, What Reason Demands (Cambridge: CUP, 1989), p. 63, 61.
37. Butler, Samuel, Hudibras (Oxford: Clarendon, 1967), p. 130.
38. He continued: 'Too feeble implements to bind;/And hold with deeds proportion, so/As shadows to a substance do.' Cf. Troilus's remark in Shakespeare's The History of Troilus and Cressida (Act v. Scene III): 'Words, words, mere words, no matter from the heart.'
39. Hume (1999, p. 336).
40. Hume (1999, p. 336).
41. Hume (1999, p. 332).
42. 'A promise, therefore, is naturally something altogether unintelligible.' Ibid.
43. For a full account of Hume's theory of promise, see Baier, Annette, 'Promises, Promises, Promises', in A. Baier (ed.), Postures of the Mind (Minneapolis: University of Minnesota Press, 1985), p. 174.
44. It was one of the central points of dispute between Joseph Raz and Neil MacCormick in their well-known exchange in 1972, which I discuss below. See text accompanying note 67.
45. Scanlon's essay on promising first appeared in Philosophy & Public Affairs in 1991, but its influence escalated markedly after its reappearance (with minor changes) seven years later as a chapter in his book, What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1991), pp. 295-327.
46. For some responses to Scanlon, see Pratt, Michael, 'Promises and Perlocutions', in M. Matravers (ed.), Scanlon and Contractualism (London: Frank Cass, 2003), p. 93;
47. Cholbi, Michael, 'A Contractualist Account of Promising', Southern Journal of Philosophy 40 (2002): 475;
48. Deigh, John, 'Promises Under Fire', Ethics 112 (2002): 483;
49. Kolodny, Niko and Wallace, Jay, 'Promises and Practices Revisited', Philosophy & Public Affairs 31 (2003): 119;
50. Gilbert, Margaret, 'Scanlon on Promissory Obligation: The Problem of Promisee's Rights', Journal of Philosophy, 2004 (101): p. 83.
51. (See also Scanlon, Thomas, 'Reasons, Responsibility, and Reliance: Replies to Wallace, Dworkin, and Deigh', Ethics 112 (2002): 507.)
52. Michael Stocker illustrates the relationship between natural facts and moral obligations by considering the role played by the natural fact of Jones having typhoid in Smith's having a moral duty to rid Jones of typhoid. For Smith to have this moral obligation Jones must have typhoid. 'Nonetheless, (Jones having) typhoid is not morally relevant - except in regard to its effects, e.g., suffering and death. Typhoid itself, does not create, ground, or explain Smith's moral obligation, even though "typhoid" figures in its description and even though the obligation presupposes the existence of typhoid.' Stocker, Michael, 'Moral Duties, Institutional, and Natural Facts', Monist, 54 (1970): 602 at 607.
53. Rawls, John, 'Two Concepts of Rules', Philosophical Review 64 (1955): 3. The influence of this paper is manifest in John Searle's speech act analysis of promising.
54. See Searle (1969, pp. 33-42; 54-61).
55. Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), pp. 342-350.
56. Rawls (1971, p. 347).
57. 'While we normally think of moral requirements as bonds laid upon us,' writes Rawls, 'they are sometimes deliberately self-imposed for our advantage. Thus promising is an act done with the public intention of deliberately incurring an obligation the existence of which in the circumstances will further one's ends.' Rawls (1971, p. 347).
58. Rawls (1971, p. 345).
59. Rawls (1971, p. 344).
60. Rawls (1971, p. 113).
61. Rawls (1955, p. 3).
62. See Rawls (1955, p. 3)
63. and Searle (1969, pp. 33-42).
64. Searle (1969, p. 33-34).
65. Rawls (1955, p. 30).
66. Rawls (1955, p. 30).
67. Hart (1958, p. 101).
68. Rawls (1971, p. 348). 'It is essential...to distinguish between the rule of promising and the principle of fidelity. The rule is simply a constitutive convention, whereas the principle of fidelity is a moral principle.'
69. Ibid, at 346.
70. That is, in the hypothetical situation in which people 'who engage in social cooperation choose together, in one joint act, the principles which are to assign basic rights and duties to determine the division of social benefits.' Rawls (1971, p. 11).
71. Rawls (1971, p. 342-343). Here Rawls draws on HLA Hart, who was the first to put the idea of fairness or fair play into the form of a principle: 'When a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission by those who have benefited by their submission,'
72. Hart (1958, p. 185).
73. Rawls (1971, p. 112).
74. Rawls (1971, p. 344).
75. Rawls (1971, p. 345).
76. Rawls (1971, p. 345).
77. Robins, Michael, 'Promissory Obligations and Rawls's Contractarianism' Analysis 36 (1976): 190 at 193. Cf. A.I. Melden's observation that no 'mutually advantageous exchange of benefits need be involved even in central cases of promises, for that would represent every case of a promise made out of consideration or kindness or compassion for another as a calculating estimate of the profits and losses involved in the transaction.'
78. Melden, A.I., Rights and Persons (Los Angeles: University of California Press, 1980), p. 94.
79. Rawls (1971, p. 345).
80. It follows that there are no real exceptions to the rules of the practice at all: 'An exception is rather a qualification or a further specification of the rule.'Rawls (1955, p. 27).
81. Rawls (1955, p. 27).
82. 'When a man engaged in a practice is queried about his action he must assume that the questioner either doesn't know that he is engaged in it ("Why are you in a hurry to pay him?" "I promised to pay him today") or doesn't know what the practice is. One doesn't so much justify one's particular action as explain, or show, that it is in accordance with the practice. The reason for this is that it is only against the stage-setting of the practice that one's particular action is described as it is. Only by reference to the practice can one say what one is doing.' Rawls (1955, p. 27).
83. Rawls (1955, p. 17).
84. Cavell, Stanley, The Claim of Reason: Wittgenstein, Skepticism, and Tragedy (New York: OUP, 1979), p. 279.
85. R.S. Downie refers to Hume's as a 'jurisprudentiar account of promising. See Downie, R.S., 'Three Accounts of Promising', Philosophical Quarterly 35 (1985): 259 at 258-263.
86. I am thinking in particular of Raz, Hart and Finnis (see Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon, 1980), pp. 298-308.
87. Pratt (2003).
88. Rawls (1971, p. 112).
89. Melden (1980, p. 89-90).
90. See also Scanlon (1991, p. 316)
91. and Kolodny and Wallace (2003, p. 125).
92. Melden (1980, p. 90).
93. Melden (1980, p. 90).
94. See Raz (1972, p. 79);
95. MacCormick, Neil, 'Voluntary Obligations and Normative Powers F, Proc. of the Aristotelian Soc., supp. vol. 46 (1972): 59.
96. MacCormick later republished his paper, with some minor revisions, as MacCormick, Neil, 'Voluntary Obligations', in MacCormick, N., Legal Rights and Social Democracy: Essays in Legal and Political Philosophy, (Clarendon, 1982), p. 190.
97. Raz (1972, p. 97).
98. See Raz, Joseph, 'Promises and Obligations', in P.M.S. Hacker and J. Raz (eds.), Law, Morality and Society: Essays in Honour of HLA Hart (Oxford: Clarendon, 1977), p. 210;
99. Raz (1982);
100. Raz, Joseph, The Morality of Freedom (Oxford: Clarendon, 1988), pp. 173-176. Stephen Smith has for example recently published a full-blown theory of contract law in which he argues that the state's enforcement of promises can be justified on the basis of a Razian theory of promissory obligation. Smith (2004). I discuss Smith's theory of promise below. Raz's account of promising is also central to Dori Kimel's recent study of the relationship between contract and promise.
101. See Kimel (2002).
102. See also Spence, Michael, Protecting Reliance (Oxford: Hart, 1999), pp. 4-9
103. and Penner, James, 'Voluntary Obligations and the Scope of the Law of Contract', Legal Theory 2 (1996): 325. I am aware of no sustained criticism of Raz's account of promise, though his views on practical reason and normative powers (which bear strongly on his understanding of promising) have been the subject of a good deal of discussion in the literature.
104. Raz (1977, p. 217).
105. Raz may have been alluding to Hume when he wrote that promises do not create obligations 'by any form of magic,' their bindingness being due instead to a norm 'to the effect that if one communicates an intention to undertake, by that communication, an obligation to φ, then one has an obligation to φ, provided some further conditions are met.' Raz (1977, p. 218-219).
106. See Raz (1972, pp. 96-97).
107. Raz (1972, p. 98).
108. Cf. Raz (1982, p. 219).
109. Raz (2001, p. 12).
110. Raz (2001, p. 12).
111. Raz (1977, p. 221).
112. Exclusionary reasons belong to the class of 'secondary' reasons, a secondary reason being a 'reason to act for a reason or to refrain from acting for a reason.' Raz (1999, p. 39).
113. Raz discusses exclusionary reasons at length in Raz (1999, pp. 5-48).
114. Raz (2001, p. 15).
115. Raz (1977, p. 228).
116. See Raz (1977, p. 227).
117. Raz (1977, p. 227, 228).
118. See Raz (1977, p. 228). James Penner, an adherent of Razian non-conventionalist voluntarism, elaborates on the nature and importance of these special bonds in Penner (1996, p. 325). For a non-Razian, contractualist argument that the value of promises lies in the value of the relationships they acknowledge and strengthen,
119. see Cholbi (2002).
120. In fact, I suspect that the concept of an exclusionary reason is unstable, but since others have put this case well, and since Raz employs the concept generally and not just in his characterization of promissory reasons, I will not take issue with it here. See Gans, Chaim, 'Mandatory Rules and Exclusionary Reasons', Philosophia 15 (1986): 373
121. and Moore, Michael, 'Authority, Law, and Razian Reasons', Southern California Law Review 62 (1989): 827.
122. Elsewhere Raz writes that 'promises are binding because it is desirable to make it possible for people to bind themselves and give rights to others if they so wish.' Raz (1972, p. 101). If by 'binding' Raz means 'morally binding' then, again, the objection is manifest: that it is desirable does not make it so.
123. Smith, Stephen, 'Performance, Punishment and the Nature of Contractual Obligation', Modern Law Review 60 (1997): 35;
124. Smith, Stephen, 'Towards a Theory of Contract', in J. Horder (ed.), Oxford Essays in Jurisprudence, (Oxford: OUP, 2000), p. 107;
125. and Smith, Stephen, '"The Reliance Interest in Contract Damages" and the Morality of Contract Law',Issues in Legal Scholarship 1 (2001); Smith (2004).
126. See Raz (1982, pp. 933-938).
127. Smith (1997, p. 369).
128. (Cf. Fried (1981, p. 17.) Elsewhere Smith qualifies this by indicating that contracts might be agreements.
129. See Smith (2004, pp. 56-57).
130. Smith (2001, p. 30).
131. Smith (2004, p. 74).
132. Smith (2004, p. 74).
133. Smith (2000, p. 128).
134. Smith (2004, p. 74).
135. Smith (2000, p. 128). (Emphasis in original.)
136. Smith (2004, p. 138).
137. Smith (1997, p. 369). (Emphasis added.)
138. Smith (2004, p. 74). (Emphasis added.)
139. Raz may object that he makes it clear that promises are not merely exclusionary reasons. Promises, like all sources of exclusionary reasons, also provide positive reasons for acting: 'The fact that it is a valid rule that one ought to φ, is both a reason for φ-ing and a reason for not acting for certain reasons for not (φ-ing. In so far as the rule is a reason for (φ-ing it merely relays the force of the reasons for (φ-ing on which it is based.' Raz (1999, p. 221). Raz uses the term 'protected reason' to describe the kind of reason for acting that is supplied by a valid rule that one ought to φ.
140. (Raz 2001, p. 15). It is protected in the sense that it enters into practical reasoning almost alone, most of the reasons for not (φ-ing having been excluded from consideration by the rule that one must (φ. A promise to (φ, therefore, is a protected reason for the promisor for (φ-ing. But what reason is it? Presumably it is the fact that the promisee has a claim on the promisor to φ. But whence this claim? Again, Raz provides no answer.
141. Raz (1977, p. 228).
142. See the paragraph accompanying note 84, above.
143. Kimel, Dori, 'Remedial Rights and Substantive Rights in Contract Law', Legal Theory 8 (2002): 313 at 326.
144. I make no case for the claim here, but I doubt that there exists anything like a settled practice of promising capable of affording a facility by which to resolve the sort of coordination problems Hume and Rawls supposed it to resolve. (The Humean and Rawlsian practices of promising bear an almost uncanny resemblance to the rules of contract.) Regardless, even if there does exist such a practice, I have argued that the moral obligation of a promise cannot be validly justified in terms of a power-conferring norm embedded in a social practice of promising.
145. Scherman, Harry, The Promises Men Live By (New York: Random House, 1938), p. 6. (Emphasis omitted.)
146. Dori Kimel has argued, for example, that contracts also possesses an important intrinsic value, which he calls the 'value of personal detachment.' This value consists in the framework 'contracts provide for doing certain things with others not only outside the context of already existing personal relationships but also without a commitment to the future prospect of such relationships, without being required to know much or form opinions about the personal attributes of others, and without having to allow others to know much and form opinions about oneself.' Kimel (2002, p. 327).