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Draft: please do not cite or circulate without permission Thomas Pink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 the promisee, 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 morally to promisees to keep promises. Indeed whether a promisor is morally bound to do what he promised whether breach of the promise would be blameworthy wrongdoing can in a particular case be a substantial moral question, the resolution depending much on debate about factors such as disproportionate or unexpected burdens falling on the promisor, the possibility that the promise was induced by coercion or deceit, and so forth. On the other hand it does seem a fundamental part of our understanding of promising that absent such factors it can and normally does obligate the promisor. People who make promises would generally acknowledge that they are thereby imposing a moral obligation on themselves to act as promised, such that subsequently breaking the promise would normally be wrong. Does the possession, or at least the expression by the promisor of an intention to obligate himself play any role in promising and in the generation of promissory obligation? Many modern authors would suppose so: by its very nature, they suppose, the act of promising involves the communication or expression of an intention to obligate oneself a communication or expression that, if various conditions are met, can then obligate the promisor. Here, for example, is John Finniss account of a promise:
First, what is a promise or undertaking? Being a human practice, engaged in and maintained for diverse practical purposes, promising has its central cases (its focal meaning) and its secondary or borderline cases. Centrally, then, a promise is constituted if
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Versions of this paper have been given at the Universities of California at Riverside, CEU Budapest, Chicago, Keio Tokyo, Leuven, London, Princeton, St Andrews, and York. My thanks for their comments especially to Thomas Baldwin, Annabel Brett, Daniel Brudney, James Conant, Tim Crane, Wim Decock, Wolfgang Ertl, Kati Farkas, Peter Graham, John Haldane, Harold James, Jonathan Lear, Michael Martin, Elijah Millgram, Veronique Munoz-Darde, Martha Nussbaum, David Owens, Jon Parkin, John Skorupski, Timothy Stanton, Carlos Steel, Eric Schliesser, Martin Stone, Candace Vogler, Gary Watson.

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and only if (i) A communicates to B his intention to undertake, by that very act of communication (in conjunction with Bs acceptance of it), an obligation to perform a certain 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 Law

and 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 what I 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, no 1, 2006 p51 Joseph Raz speaks of promissory obligation as a voluntary obligation in that it is undertaken by acts performed in order to undertake an obligation. (The Authority 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 and

obligations p218 in Law, 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 (the promisor) deliberately communicates or expresses an intention to obligate themselves to another person (the promisee); and can, subject to the consent or acceptance of the other, by that 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 obligate oneself. Now not all promisors need actually possess such an intention. But those promisors that do not are still communicating or suggesting otherwise, and assuming they understand what promising involves, are, by that very fact, being insincere or deceitful. Perhaps such promisors really intend not to act as promised, and so intend or at least prefer if possible to escape any moral obligation, and by promising strive to mislead the promisor as to their true intentions. Whereas a sincere promisor will always really hold the intention that his promise expresses; he really will mean to obligate himself. Second, there is a claim about promissory obligation itself: that its source 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 or at will, just through expressing an intention to become so obligated. My purpose in this paper is to establish two conclusions. The first is about the intentions of promisors, and, connectedly, about how promisors are understood by others. It is perfectly true that many promisors may well intend to obligate themselves 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 perfectly sincere and competent promisor may still make his promise without holding any such intention. 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 or be ready to acknowledge that through the promise an obligation has been created.

3 Promises generally create obligations to act as promised; and to have any understanding 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 obligation need not have been the purpose of the promisor or something desired or hoped for by the 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 his promise. Secondly, and most importantly, even if a promisor does hold an intention to obligate himself to act as promised, the expression of such an intention plays no role in the generation of promissory obligations, which originate in quite another way. The use of terms such as I promise by the promisor may serve to acknowledge the existence of a consequent moral obligation to act as promised, whether or not this obligation was specifically intended. But the source of the obligation does not lie in any such acknowledgement 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 obligate oneself. Promising in everyday life contrasts importantly with the use of legal formulae that may have as their sole function the creation of a new legal relation, such as a transfer of 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 impose on oneself a legal obligation; and without the use of these set forms, the transfer or the imposition of the legal obligation may not be possible. In which case someone who uses these expressions, and does so with a competent understanding of their function, may be said to be expressing an intention to effect the transfer or to impose on themselves the legal obligation. But the expression 'I promise to', at least outside a specifically legal or institutional context, is not the same. The apparently sincere utterance of these words may, in general, impose an obligation on the speaker. But the 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 even without the use of expressions such as 'I promise to'; and it may be these other things done 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 and intentions may not lie in the production of that obligation, but may rather have to do with 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 a promise. 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 that he is obliged to do something. For the presence of such a concern is supposed to be what his promise conveys. Now, as we have already agreed, people certainly treat promise makers as frequently under a moral obligation to keep their promises. At least 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 broken for some fairly good reason. But this does not mean that promise makers need have

4 formed an actual intention to obligate themselves; that it was changing the moral status of their future actions that was their goal, or that the lack of such an intention involves 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 me doctor, that you will be there. And I reassure her: I promise. My goal in making this promise is, surely, to give my patient something she has requested and badly wants. But precisely for this reason my goal need not be to change what I am morally obligated 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 obligating myself 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 my presence 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 an obligation on my part to be present, but my actual presence, with prior assurance that I 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, and provided I do eventually deliver on my promise by actually being present at the operation? 2 It might be thought that the existence of the obligation must matter to the patient. For what else will reliably motivate me to act as promised but the existence of a moral obligation to do so? Without that motivation, how can the patient be assured that I will be there as promised? Certainly some philosophers have thought that only a sense of duty a belief that one is 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 the artificiality or conventional origin of the obligation to keep promises:
Now tis evident we have no motive leading us to the performance of promises, distinct from 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. A

Treatise of Human Nature (ed L.A. Selby-Bigge Oxford 1978) Book III Part II section V 'Of the obligation of promises' p518 But it is simply not obvious that Humes claim is true. Why cannot a promise maker be motivated simply by the thought that they have promised that they have given their word? The content of this thought is not obviously about obligations at all, and its motivating force does not strictly depend on thoughts about obligation. Which is why someone can intelligibly be motivated to keep a promise even when sceptical about whether they are really bound by any obligation to do so. Suppose, because of a quite unexpected change in circumstances and the resultantly and suddenly huge cost 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 to secure an obligation in her favour. It is just to suggest that there can perfectly well be other cases where all that is really wanted is the doctor's presence, and advance assurance of that presence.

5 become strictly permissible for him not to keep his promise to his patient. He might surely still be motivated to keep his promise by the thought that nevertheless, permissible or not, he had given his word. Such a motivation might appear quixotic to some. But the motivation is not unintelligible, and it does not involve thoughts about 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 moral status of my future actions I am concerned simply to provide honest reassurance to the patient that I will indeed be there - I am plainly not being in any way deceitful or insincere, 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 understand me 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 to obligate myself to her, but in the honesty of my offer to her of my future presence at the operation. And in failing to attribute to me any actual intention or purpose of obligating 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 in her understanding of what promises are, or what the sincere utterance of a promise implies about a promisors state of mind. This doctor-patient exchange is an entirely normal case of promising. Despite the very possible absence in both parties of any intention of or concern with obligation, there seems nothing defective or borderline about it. The early modern tradition of Catholic natural law made extensive discussion of the morality of promising. And in its discussion there was frequent recognition of the possibility that many promise makers might not actually intend anything regarding their 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 their future 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 to provide assurance of delivery on that offer. But in giving attention to the possible lack of any actual intention in the promisor to obligate himself, these Catholic moralists were not just giving due recognition to psychological reality. They were facing up to what, for their tradition, was a serious theoretical difficulty. Why does the standard description so neglect the promisors offer to do what is promised, and concentrate instead on the promisors supposed intention to obligate himself? In fact this standard description is the survival of a once important and influential theory of promising. It looks as though promising is something we can do at will. Add to this the perfectly true thought that, standardly at least, promising is an action by which we can obligate ourselves morally to others, at least if those others consent to the obligation. It is then tempting to infer that promising involves a power that we possess to obligate ourselves morally to others at will. But then if we do possess such a power to obligate ourselves at will or voluntarily, is not the will to obligate ourselves the source of the obligation when the power is exercised - at least if this will is expressed so as to obtain the consent of promisees? In other words it is a declared will to obligate oneself which produces promissory obligation. In which case the central function of promising must be to express to others ones will to obligate oneself through the very promise which one is making.

6 This view of promising then explains very well the appeal of the standard description of what the action of promising itself consists in. If promising is all about obligating oneself, and if the obligation to keep a promise comes from ones intention so to obligate oneself provided this intention is communicated to the promisee and the promisee consents, then it had better be our possession of this crucial obligationproductive intention which the act of promising communicates or expresses to a promisee. 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 - was encouraged by a certain model of legislation that was applied to the case of promising too. Any legislator has authority; and, according to the model, legislative authority consists in an ability to will obligations into existence obligations that apply to those subject to the authority, provided the will is promulgated or expressed. Suppose we 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 is expressed, and accepted by the other to whom they are to be obliged. This legislative model was very current within the tradition of Catholic natural law. Thus we read a prominent Dominican moralist of the sixteenth century, Domingo Soto, stating as something 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 intention specifically to obligate oneself. What if one promises, but without actually holding an intention to obligate oneself to another? For example, suppose we have a case of what, on any theory of promising, must count as actual insincerity and deceit. What if one makes a promise despite intending not to act as promised? Here it is because one deceitfully intends not to deliver on ones promise that one fails to intend to obligate oneself. Indeed, far from being unmindful of ones future moral obligations, one may even actually intend not to become obligated so to act. We want to say the moral obligation is not so easily avoided by the mere lack of an intention to obligate oneself, 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 tension between this model and possible psychological reality was deeply felt. Some thinkers, such as Domingo Soto, were willing, if pressed, to admit that the obligation that immediately arises from a promise need not arise from an intention to obligate oneself, and that it can arise even without this intention though without acknowledging the difficulties posed by this admission for their favoured legislative model and its explanation of promissory obligation. Others, such as Liguori, insisted on 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 prevent his promise from giving rise of itself to any obligation:

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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 obligated prevented the promise and its acceptance generating any obligation of themselves, the promisor might still become morally obligated to the promisee if the promisee ever relied 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 to arise just from the promise whether or not there actually is an intention to obligate oneself, the obligation cannot arise as a product of any will to create it. It must then have quite a different origin. And why then, if the actual possession of an intention to obligate 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 an intention, whether or not it actually is present, as even in a sincere promisor, such as our doctor, it might very well not be? I suspect that with many promises in everyday life, such as the promise made to the worried patient by the doctor, thoughts about obligation often arise first only when or if the promise gets broken; and these thoughts will arise, in particular, in the mind of the promisee who feels wronged by the promisor. But even here the promisee will not simply feel that they have been deprived of something they had a right to. They may 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 explained simply by referring to some obligation that the promisor has breached. For one can easily feel that one has been denied a right without feeling especially hurt or personally diminished by that denial. Whereas there clearly is something rather personal about someones breaking their word to you. And a theory of promising needs to explain what this personal hurt might involve. What must a promisor really intend? Clearly, they must intend to convey an offer to the promisee an offer of the action promised with an assurance or pledge of delivery on that offer that involves but goes beyond the mere expression of an intention to deliver. But though promises may generally obligate, as we have seen it need not be the promisors actual intention that they should. Even if the obligations generation may be foreseen, the purpose of making a promise need not be to generate that obligation, 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 unlikely to want, but something quite different and of much greater interest to most promisees - performance of the action promised. Besides promises to do things or promises to promises as to performance or performance promises - there are promises as to fact factive promises or promises that.3 I promise you it really happened, right before my very eyes. Now there

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 promise that form in communicating what I call promises to: as in I promise you that I will do it.

8 seems something about promising that which leaves it very like promising to. But the thing in common is not obviously the expression of a corresponding intention to obligate oneself. That is, it does not seem that as promisors to (supposedly) express an intention to obligate themselves to, so promisors that express an intention to obligate themselves that. For there are no obvious obligations that. Obligations are always obligations to obligations to perform, to do things or refrain from their doing. It is tempting to cast around for some obligation to perform that all makers of factive promises distinctively incur through making their promise, so that their making of a factive promise that can express their intention to incur this obligation. But what might this obligation be? Is it an obligation to speak the truth, or at least to take care that truth is spoken? But in ordinary assertion such an obligation is plausibly incurred anyway, whether or not a promise as to fact is actually made. Perhaps then it is some further, more demanding obligation. But the candidates are not obvious. Certainly there 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 that promising that has nothing much to do with promising to; it might 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 a deeper level that is not itself to do with obligations. And it is only when considered at that 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 enter into agreements:
For tis not every Compact that puts an end to the State of Nature between Men, but only this one of agreeing together mutually to enter into one Community, and make one Body Politick; other Promises and Compacts, Men may make one with another, and yet still be in 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 performative promises, is much less common than it is in British English. For example, in the US factive promising more commonly involves the use of 'I guarantee that' or 'I swear that' or some like expression. For reasons that will become evident, this will not matter 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 to performance, but then only to such promises involved some form of reciprocal exchange. We shall see how many philosophers have indeed attempted to treat promises involved in exchange as a case that is supposedly central and to be considered apart from any other, and how far this approach to promising is warranted.

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the Desert Island, mentioned by Garcilasso De La Vega, in his History of Peru, or between a 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 Treatise

of Government (ed Peter Laslett, Cambridge 1960) chapter 2, Of the state of nature para 14, p277 Whereas Hume denied that we had any such pre-social power. For Hume, the possibility of promising must depend on the existence of a social convention or practice of promising:
I say, first, that a promise is not intelligible naturally, nor antecedent to human conventions; and that a man, unacquainted with society, could never enter into any engagements with another, even tho they could perceive each others thoughts by intuition. Hume A 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 agreements involves and requires what Hume calls human convention, just as does the use of any linguistic term. If promising is seen as a practice that, by its very nature, is dependent on the use or availability of certain linguistic expressions, then it might seem as though Humes point follows immediately. The possibility of promising must 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 did depend 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 were conventional 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 the form 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 of making and keeping promises, and that it is the form which that practice has taken which has determined the nature of these obligations and rights. Hume sees promising and the virtue or obligation of fidelity to promises as part of what he calls artificial virtue morality in a form that depends on and derives from a variety 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 is in 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 as the making and keeping of promises, that define what constitutes ownership and the constitution of the state and of political authority all these have arisen the better to enable individuals to further their own self-interest. But in so far as respect for these conventions, just by furthering the self-interest of the generality of individuals, equivalently serves the common good, so we come morally to approve of such respect, and to regard it as morally virtuous and obligatory. So conventions that developed to further individuals self-interest come to define new forms of moral

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 as promise, but can be exercised prior to and independently of them.

10 right and obligation forms of right and obligation that would not have existed at all without those conventions. Now this sort of claim, at least regarding some obligations and rights, was not original to 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 intuitive that many parts of morality and the rights and obligations that compose them might be 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 of humanity as living originally in some earthly paradise or else in some condition of primitive and uncultivated want, it seems unobvious that there were always property rights and obligations to respect them. Perhaps instead property rights only appeared through a process of human social development. As for property, so for other things too, such as the existence of states and forms of political authority with concomitant rights to command or legislate and obligations to conform to legislation. So central in particular to the modern or Protestant natural law tradition was the project of explaining some parts of morality as not natural or original to human nature but as instead artificial, in Humes phrase, or as adventitious, to use the term of his predecessor, the 17th century natural lawyer Samuel Pufendorf. These developmental accounts of human morality were linked to general theories of human social, economic and political development. For the development of artificial or adventitious forms of morality went hand in hand with the development of the social institutions and structures that those new, humanly generated forms of morality governed. In the Protestant natural law tradition we see moral theory linked to highly inventive exercises in history and social science. And though Hume was not himself a natural lawyer he specifically denied what natural law affirms: that moral obligation consists in the existence of a distinctively practical form of reason in legal or demanding form that governs us just as possessors of a rational, human nature6 he otherwise perpetuates and further develops much of the social scientific and historical research 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 of pacta of pacts or agreements.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 the adventitious or artificial is the creation of agreement, and agreements are exchanges of promises, that might make it appear that the obligation to keep promises must at least be natural. On the other hand, for Pufendorf pacta or agreements need not involve the actual exchange of promises. They can include something more like conventions as well as formal promises. For example, it is supposed to be pacta which 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: from Late Scholasticism to Contemporary Thought ed. Sara Heinmaa and Martina Reuter, Dordrecht: Kluwer 2008
7

See his De Iure Naturae et Gentium, Amsterdam 1688.

11 plausibly lies not in promising, but in the gradual development of shared habits or conventions of linguistic use. What Hume clearly perceives as Pufendorf does not, is the important difference between a mere convention or mutual adaptation of behaviour and an actual exchange of promises. So Hume replaces Pufendorfs appeals to undifferentiated pacta. The relevant artificial virtue-creating mechanism of social interaction for Hume is definitely convention - a kind of mutual adaptation of behaviour in the pursuit of individual 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 promises as 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 all creations of human self interest in enlightened form self interest that motivates us to make 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 of friendship, 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 from those which are required from a right properly understood, and are, therefore, directed by actual justice. The former are not caused by nature of agreements, express or implicit, but are laid upon all men by nature herself on mere grounds of obligation. But whatever things I owed a man from agreements or covenants, I owe because he has secured a new right against me by my own consent. Furthermore, whatever I have done with another man 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. Pufendorf On the Law of Nature and

Nations 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 openly differ from Hobbes in seeing an important category of our obligations to others as arising naturally, independently of any agreement or convention. Both believe in a natural morality of obligations of what Pufendorf terms humanity or love and Hume terms benevolence. Independently of any social interaction, this wholly natural part of morality commits us just as human beings to providing various kinds of basic help to those in need, and to refraining from various kinds of assault and harm. It is the establishment of conventions and pacta or agreements which thereafter extends this initially natural morality into new and humanly created, adventitious forms and which does so, at least immediately, in the service of self interest rather than benevolence. And this brings us back to the original dispute between Locke and Hume. Why suppose with Hume that the rights that fidelity to promises protects are products of convention, rather than preexisting rights that help shape the form that our practice of making and keeping promises takes? For many will find something deeply intuitive about 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 of promises to the dubious theory which we began by considering the theory of an alleged pre-conventional power to obligate ourselves at will.

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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 A

Treatise 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 moral obligation just like that and certainly not the most obvious candidate, a willing or intention of the obligation. For moral obligations, according to Hume, consist in human sentiments sentiments of disapproval that we are disposed to feel towards the obligation-breaker. And sentiments are not voluntary or subject to the will. The peculiarities of Humes model of obligation aside, the whole model of promising as being about creating obligations through a will or an expressed will to do so may anyway be a red herring a descendant of a misguided attempt to explain promising and the obligations to which it gives rise in legislative or quasi-legislative terms. The naturalness of the obligation to keep promises may in fact be defensible quite independently of any reliance on this quasi-legislative model of what promising involves. Or so I shall argue. But first we must examine Humes conventionalist theory 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 the product of a particular convention, a promising convention. What is the function of this convention, and how has it arisen? Humes claim is that this promising convention arises to meet a particular need that of enabling and facilitating selfinterested exchange. How can self-interested agents provide others with goods and services with the assurance of receiving a definite return in exchange? The problem is supposed by Hume not to arise with simultaneous exchanges, since if one party ceases reciprocating the other can just as immediately stop performing too. But what if a return can only be made later?
Now as it frequently happens, that these mutual performances cannot be finishd at the same 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-interested counterparty will ever make that return? Gratitude wont reliably motivate the predominantly self-interested. So, to take his famous example, Humes two farmers each have fields in need of harvesting. Neither farmer can harvest his own fields alone; each farmer needs the others help to get his harvest in. But neither farmer will help first as neither sees any likelihood that their help will be returned. For why should the counterparty see it as in his interest, once his fields are harvested, to return the help?
The seasons change; and both of us lose our harvests for want of mutual confidence and security. ibid p521

13

Self interest may of course get canny, or at least optimistic. We only need the hopeful thought to spread that favours done without hope of immediate advantage may 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 to mark out interactions where a return is expected, and distinguish them from the more generous and noble intercourse of friendship and good offices where return is not in question? And where a definite and specific kind of return is expected, how most securely 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 marks out the commerce of self-interested exchange. And according to this convention whenever 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 and the 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 we call a promise, which is the sanction of the interested commerce of mankind. When a man says he promises any thing, he in effect expresses a resolution of performing it; and along with 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 selfinterest, thanks to the threatened penalty, to reciprocate in the way promised. He then becomes a really credible exchange partner, and both sides can then embark on a mutually advantageous pattern of exchange:
A resolution is the natural act of the mind, which promises express: But were there no more than a resolution in the case, promises woud only declare our former motives, and woud not create any new motive or obligation. They are the creations of men, which create a new motive, when experience has taught us, that human affairs woud be conducted much more for mutual advantage, were there certain symbols or signs instituted, by which we might give each other security of our conduct in any particular incident. After these signs are instituted, whoever uses them is immediately bound by his interest 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 or convention, but that every one have a sense of interest in the faithful fulfilling of engagements, and express that sense to other members of the society. This immediately causes 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 see that everyone benefits from the existence of the promising convention. The promising convention does what needs to be done: to mark out actions expressive not of gratuitous generosity and friendship, but performed self-interestedly out of

14 expectation of exchange; and to ensure that that exchange is in fact made And as a result the hoped for non-simultaneous exchanges are facilitated. And so, with the common good in mind, we come to view the keeping of promises as morally obligatory, and come to see fidelity to promises as a moral virtue:
Afterwards a sentiment of morals concurs with interest, and becomes a new obligation upon 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 A

Treatise 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 the obligations 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 originally served purposes other than that of respecting such rights and obligations? Or are the obligations and rights prior, and is it these that have in large part shaped the practice of promising? Obviously one element in promising the language by which the concept of promising and the intention to promise is expressed is conventional. But the involvement of convention in our capacity to oblige ourselves through promises might go no wider than that. There is one obvious line of objection to Hume. Take the exchange of services, such as those which Humes self-interested farmers provide by each helping with the harvest of the other. Is the obligation of one to make the promised return to the labour 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 a man, 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 an obligation, 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 peculiar supposed 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 natural right possessed by each to determine under what conditions he will provide goods and services to others, at least in cases where he is not obliged to provide those goods and services in any case. One function of promising is simply to acknowledge and respect this right. I promise to you that I will help you with your harvest tomorrow if you help me with my harvest today. In so promising I recognize your right to make your 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 the practice of promising. And the practice of promising is only required in cases where a 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 for reciprocation. And from this practice the idea of an obligation to reciprocate as

15 promised then arises. Prior to the practice there is no obligation, and no right to expect reciprocation or unjust denial of that right. But, contrary to this, the idea of an obligation to make a return can surely be invoked immediately, in relation to any exchange, simultaneous or otherwise. Suppose Humes farmers find themselves in sight of each other, each standing by chance on the others property, but separated by a sudden river flood that neither can ford, and that will diminish only after the sowing season is over. Each is in a position to sow the others crops, and there is no one else to do the job. Even prior to the establishment of any practice of promising, each can make it clear, by shouting out what he is willing to do, or through otherwise signaling or implying this across the flood, 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 the other still involved in sowing too. With each in full sight of the other, this looks like a 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 Humes theory there is no room yet for any obligation or sense of such. But supposing one of the farmers discovers later that despite all appearance, somehow the other (a master illusionist) managed only to feign the effort and so avoided actually sowing any seed at all. Is it not natural to suppose a sense of wrong in the discoverer that he has not only been deceived but defrauded? It is as with any other exchange. Each can see in themselves and others a right to determine under what conditions he will do things for the other. Each can recognize the assertion of such a right, and each can recognize its violation. To fail to respect that right through fraudulent deception is in fact as much an invasion of anothers liberty as would one farmers actually physically forcing the other to sow his fields, supposing the farmer could do that. Even supposing no further injury were done to the farmer so compelled, he would still view his being so coerced as an intrusion on his liberty. And would we need a convention to see the application of such coercion as wrong? Surely if there is anything to Humes natural and preconventional virtue of benevolence, forcing the other farmer to sow his fields unrewarded would be contrary to the natural duty towards others that both Pufendorf and Hume defend against Hobbes. Why then the need for a convention to make sense of 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 whether or not any convention has arisen of so helping others. But beyond these duties and granted their extent, it is equally natural to suppose that natural morality affords us a certain liberty. This liberty involves an obligation on others under normal conditions not 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 goods and services we provide for others, and under what conditions. Now a failure through deceit to deliver a clearly insisted on and acknowledged reciprocation to some service given by us is as immediately recognizable a violation of this right as is the use of outright force to extract that service from us without return. A function of the

16 practice of making and keeping promises is not to create that right, but to recognize and respect it. 8 So one criticism of Humes theory of promising is this. Hume, like Pufendorf, is concerned 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. In particular, there are pre-conventional standards of humanity and benevolence towards others that preclude various forms of coercive interference in their lives. But Hume wants at the same time to maintain that the morality of fidelity to promises in the context of exchange is wholly artificial, and generated by practices originally directed simply to the furtherance of self-interest. Yet surely, it is rights under natural morality that the practice of fidelity to promises protects. For if people had no natural right not to be defrauded of their goods and services, why should they possess any natural right not to be coerced into providing them just for the whim and convenience of another? If even when unaccompanied by any further injury, such coercion is wrong 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 liberty to determine what he does with his own. Hume takes our existing practice of making and keeping promises to have arisen in its present form to facilitate self-interested exchanges; and he claims that this present form has then created and shaped moral obligation in respect of promises. But of course if promising had all along been about the facilitation of self-interested exchange, convention and practice in relation to promising might well have taken a different form. The convention might not just have been to keep promises at the risk of 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 some roughly specified interval. Such a convention would certainly be a highly effective facilitator of reciprocal exchange. For there would be the less incentive for any promise breaking, and so people could enter into and perform first under agreements with the greater confidence of a return. And on the Humean view if such a convention did come into existence, and everyone really did benefit from the strict adherence to it, it would be adherence to this convention that would come to count as morally obligatory. And then of course there would be two moral obligations in relation 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 mutually advantageous exchange it might be, has nothing to do with promising as we ordinarily understand it. Indeed it seems absurdly morally oppressive on promisees and third parties. On our understanding, in relation to promises only their maker can actually be obligated - to doing what he promised. Others are at perfect liberty to trust him again should they so choose. But that is because what we are dealing with is not a convention 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 others preexists the use of such terms as I promise, and can be understood and asserted without them. It is this preexisting right that helps make the practice of promising intelligible. As I suggested earlier, the ability to incur what are in effect promissory obligations does not depend on linguistic terms such as promise, but can be exercised prior to and independently of such terms.

17 dealing with a practice that asserts and respects preexisting rights. And only the promise breaker has actually done wrong by denying anyone their right the right to determine 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 to determine 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 evident when we examine social reality, and note how very different from each other are the actual practices involved in promising and property - two parts of morality and social practice that Hume himself repeatedly likens and seeks theoretically to assimilate.9 The institution of property does indeed seem to involve a carefully maintained set of conventions of just the kind that Hume's theory would require. People do generally and 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. But there 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 supply the paper by month end. For no sufficient reason, you break your word - but I exercise my right to forgive the breach and offer an extension to the deadline, which again you promise to meet. And so it goes. You repeatedly fail to act as promised and I repeatedly fail to penalise you for your failure. In my experience this sort of thing can go on for several years. There is nothing recognisable in this case as observance of Hume's promising convention. The Humean convention of doing what one has promised at the risk of being penalised if one does not is in many areas of life, 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 a convention's being generally established and maintained. There are uses of locutions associated with promising in the context of agreement that do 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 tend to say, not, lets promise to but lets agree to. For example, faced by a number of plausible meeting places, and anxious to settle on one in particular, I might say to you: 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 real exchange of goods or services. This is not a case of each party getting something that he 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 does is leave a particular meeting point mutually salient, enabling us both to meet should we continue to wish to do so. And if one of us does not turn up, because they no longer wish to meet, the other may feel frustrated or a bit let down. But I doubt they will feel denied something they had a right to that they have been done out of something or robbed as the deceived farmer might feel done out of the sowing of his field. Here lets agree to is simply a means of coordinating our activities to some common end. But here of course, there need be no serious obligation unless we were under an obligation to attain the end in the first place. But perhaps we arent so
9

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 A Treatise of Human Nature,

Book III, Part II, section v, Of the obligation of promises pp521-3

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 may have this in mind when he describes promising as a practice or convention with a coordinatory function:
So with promises. A certain set of facts affords an opportunity of answering to a standing need of the common good, the need for individuals to be able to make reliable arrangements with each other for the determinate and lasting but flexible solution of coordination problems... Natural Law and Natural Rights pp 306-7

But it cannot be that all promising and agreeing is like this nothing more than a device for enabling mutually advantageous coordination. So understood, promises and agreements might generate reasons for acting as promised. But it would be hard to see why these reasons should characteristically be obligatory. If we are not obliged to pursue an end, such as meeting to continue a conversation, why should we suddenly be obligated to its pursuit by some device that simply enables us to pursue that 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 something very different from coordinating action, something that is clearly obligatory by its very nature - recognizing and respecting a pre-existing natural right, to determine the terms of an exchange. But there is now a problem; and this is a problem which faces not only Hume but also the believer in a natural right to impose conditions on ones services and provisions to others. This is the phenomenon of gratuitous promises, made without expectation of return, in the context not of mutually self-interested exchange, but out of simple charity or friendship. Here I promise to someone in need, or to a friend, that I will help them, without any expectation of return. So I am neither asserting nor recognizing anyones right to impose conditions on their services to me or to others. I am simply committing myself to provide such services gratuitously. And do not such promises oblige? But if 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 and services to me. Both Pufendorf and Hume see promising or agreement as facilitating exchanges between the self-interested. The involvement of promises is supposed to distinguish these self-interested exchanges from those involving the more generous and noble intercourse of friendship and good offices. But gratuitous promises promises unaccompanied by a corresponding expectation, let alone obligation, of reciprocation are common and a central feature of friendship. These are definitely thought to oblige. Here we see a fundamental difference between Pufendorf and Hume and indeed much of the Protestant or modern school of natural law on the one hand, and the Catholic natural law tradition on the other. The Catholic natural law tradition was also deeply interested in promises involved in contracts or exchanges. For most of those contributing 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 and Antwerp, confessions in relation to various kinds of contract raising the issue of

19 whether these contracts should have been agreed, or kept, or broken were part of the everyday experience of any cleric giving the sacrament of penance. So a treatment of contracts and promises in relation to exchange was a vital part of the moral theology of promising. But Catholic natural lawyers had no difficulty with giving equal attention 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 and concern with such promises. For they had all made such promises to one friend in particular. They were generally priests and in many cases were also vowed members of religious orders. And as such they had all made promises, of gratuitous selfcommitment, to God who was their loving friend. So besides discussions of promises in relation to contract there were also discussions under the categories of vota and dona of vows and gifts. And the same underlying theory was applied in all cases. Promises in the context of exchange or contractual promises were not treated as a special case; and certainly they were not treated as the central or defining case of promising. This underlying general theory might sometimes, as in Liguori, be the unfortunate theory of a mysterious natural quasi-legislative power to oblige oneself through willing such an obligation, and then expressing or promulgating ones will. This seems 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 on promising as Pufendorf did, took property, or at least quasi-ownership rights over ones own self and labour, to be part of natural morality. They then explained the obligation 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 quasiownership rights over our own labour and powers, by promising we can transfer these rights to others. And it is in virtue of transferring these rights to others that we obligate 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 will which is sufficiently manifest, as we have said above. Why then, since we have equally right 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, Book

2, 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 to work in this way. Suppose I promise to X to do nothing but work all day tomorrow on his garden; and then, without revealing this earlier promise, I go on to promise exactly the same thing to Y. Whether I am making these promises gratuitously, or in each case I am making the 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 X and Y gains a right to my labour tomorrow on their garden. But how can the transfer

20 theory explain this? According to the transfer theory, any ownership right over my labour or liberty in relation to gardening activities tomorrow has already been transferred 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 of the 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 have generated an obligation to Y to garden for him, according to the transfer theory Y has only one ground of complaint against me: that I have fraudulently misrepresented myself as being in a position to obligate myself to him to act as promised. And in fact he has this ground of complaint whether or not I fulfil my promise to him. But that seems absurd. Surely Y would feel himself aggrieved and wronged only if I failed to deliver on my promise precisely because it was to doing that that I had obligated and committed myself. It is that failure he would want me to make up to him, as the wrong done to him, not some fraudulent misrepresentation as to the availability and transfer 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 with receiving 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. The promisees immediate understanding of a promise is as involving an offer not any ordinary offer, but still an offer; and the offer is of the action promised, not of some moral obligation to perform it. What the promisee expects, then, is delivery on this offer. And it is only when delivery fails to occur that the promisee will then start thinking 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 the promisees can obtain performance of the action promised. And it looks as though it is hardly arbitrary which promisee this should be. Other things at least being equal, I should do the garden of X rather than Y, since it was to X that I first promised my help. But of course this does not show that in thereafter making the same promise to Y, Y acquired no right to the same service as X. Rather, when I have a like obligation to both X and Y, and it is or becomes impossible to meet both obligations, then other things being equal we do allow priority by whom was the right acquired first to decide 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 obligation involves 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 use Kants 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 the promisors choice, so that the promisor is obliged to perform, this authority is something that the paradigmatic promisee wants for its own sake. I doubt this is generally true.

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's garden, because my promise to Y had already and directly given Y a right to that, and there would no longer be any prior commitment to X standing in the way. Again even 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 do garden for X. What has to be made up to Y is clearly my failure to do Y's garden, the action promised. For it was to the performance of that very action promised that Y acquired a right, just as did X beforehand. Y in regarding himself as having a right to my performance of the action promised, is treating the promise as a mode of commitment a commitment to deliver on my promise. And commitments and the obligations associated with them are quite different from transfers. For while one cannot over-transfer, one certainly can overcommit. And this seems true whether a promise is made gratuitously, or whether it is made 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 to exchange goods and services, dishonestly or recklessly making a series of offers of return 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 property title, and where once one such agreement has been made in proper form, all subsequent agreements by the initial transferor purporting to transfer the same title are by the very fact of the first invalidated. Certain forms of contract in a housing market might constitute just such forms of title transfer. Arguably, an exchange of vows 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 any subsequent cancellation of the contract) invalidating any further such exchange of vows either party enters into with a third. Contrast the exchange of vows in actual marriage with a prior promise to marry, which simply commits the promisor to a future 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 are gratuitous that are made not as part of an exchange but, it seems, for nothing in return. 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 lawyers well understood, such promises are very frequently made and they can be as obligatory as any.

12

I notice that in this connection Liguori distinguishes between vows that are solemn and those that are simple. The former invalidate all further vows of the same kind to other parties, the latter may render all such further vows immoral or illegal, but not invalid. Liguori mentions marriage vows and vows of religious celibacy (a kind of marriage to Christ or to his church) as falling into the category of solemn vow. This distinction 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.

22 Some modern philosophers are still inclined to dismiss the gratuitous case as a genuine source of moral obligation on the promisor. This may in part be a legacy of Pufendorf 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, the characteristic 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. If that is indeed the case, then the conclusion must surely be that the promise itself makes very little difference to the situationThe more gratuitous the promise is, the less it is required 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 the

Law (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 are somehow 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 a promise to a great friend, and to make it just out of friendship, is a very plausible way of obligating oneself to that friend. People who break such promises made to friends are very intuitively wronging them. It may be that friendship brings with it prior obligations of an imperfect sort obligations to some things or other for friends. But these initial obligations are imperfect. I am under no obligation to do any particular thing. 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 obviously presents us with a deep difficulty. For the theory of promissory obligation we have so far developed applies only in the context of exchange, appealing directly as it does to a right to determine the conditions under which we make our goods and services available to others. It might be tempting to resolve this difficulty in the following manner. What are the moral implications of the existence of a right to determine, within limits, the conditions under which we make our goods and services available to others? We have 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. The infliction on us of coercion and fraud by others is wrong because an assault on this liberty. But if we have this liberty, can we not voluntarily lay it down? Can we not obligate ourselves to others at will? If so our ability to obligate and commit ourselves through 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 general introductory remarks on the relation between moral and legal obligation are to be found in my Moral obligation, in Modern Moral Philosophy ed A. OHear, pp 15985, Cambridge University Press 2004; and in my Reason and normativity, Journal of Moral Philosophy, November 2007.

23 through promises in the context of exchange. In each case the obligations involve the liberty of the individual whether the surrender of that liberty by the promisor, or a duty 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, we may 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 our liberty 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 through promising we lose it. The loss of our liberty may be explained by our duty to respect that of another, and the conditions he has placed on those of his services that we have chosen 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 we have 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 others does not involve transferring rights to them, what does it involve when gratuitous promises are in question? Clearly, to lay down ones liberty involves coming to have an 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 to liberty 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 not evidently unlimited. It certainly seems not to display any very simple power to lay down our liberty or obligate ourselves at will. For not all gratuitous promises obligate the promisor with equal obviousness, even when the promised service is accepted by the promisee and even when the promise is accompanied by a genuine intention on the part of the promisor to obligate himself. And this is so even when there is no coercion, 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, someone entirely unconnected to me, who is prosperously there employed and in no obvious need 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 really do intend to bring this state of obligation about - I promise to give him 20 within half 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 to hand the money over, will I have actually wronged the promisee? It seems at least debatable. If the moral obligation does exist at all, it is not obviously a very serious one. 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 will through 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

24 return.) Or consider a case where I promise a favour to a social acquaintance or a work colleague. Or consider a case where I promise a stranger in obvious need that I will 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 more plausibly 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 my part to give up my liberty or to obligate myself at will a power which if present at all 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 nature of gratuitous promising particularly clear, and as intelligible as in any case of exchange. 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 patient showed, even in sincere promising such a will to obligate oneself need not be present anyway. 8. Promises as invitations to trust I shall now argue that gratuitous promises involve a distinctive way of relating oneself 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 and understanding this form of relation will enable us to understand how gratuitous promises to act generate moral obligations to act as promised. But it will also uncover what is common to both promises to and promises that, and explain why we see 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 of promising that and of future action or performance in the case of promising to. In the case of the information provided in promising that, what is offered the conveyance of information or a truth - is provided simultaneously, if it is 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. With promising to things are different, and the offer is not yet delivered, and so there is room for the promisee to refuse what is offered before delivery. If the promisee accepts, or at least does not refuse, the sincere promisor will thereafter become motivationally committed to deliver. That is, he will remain motivated to deliver what has been offered subject to the promisees continued wish to receive it. What else is in common to the two cases besides an offer? In addition to the offer there 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 in relation to the delivery. More specifically the promisee is invited to take a twofold trust in the offeror. The promisee is invited to rely on, and to take comfort and reassurance from, both the promisors motivation and his capacity to deliver.

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 motivation - the offeror's capacity to deliver what is offered

In the case of factive promising that the promisee is invited to trust, first, in the promisors motivation to tell the truth in his honesty. Secondly, the promisee is invited to trust in the promisors epistemological capacity or reliability in his ability to get his assertion right. Notice this invitation to trust is not part of everyday assertion. For whilst in the context of serious conversation assertors are supposed to assert what they really do believe, they do not thereby, just through asserting, actually invite conversational partners to put their trust in the sincerity of the assertor. Still less are conversational partners invited, just through the act of assertion, to put their trust in the epistemological capacity or reliability of the assertor. Not only is the addressee not necessarily invited to trust in or rely on the assertors sincerity or reliability; there are contexts of serious assertion in which such trust or reliance 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 the supposedly evident truth of other propositions asserted, and not on the basis of any appeal to the assertors own sincerity or epistemic competence. Whereas factive promising is quite different. Someone who insists, in the face of scepticism whether something that they witnessed really happened: I promise you, it did, I saw it happen with my own eyes, is exactly inviting trust both in their own truthful motivation and in their capacity to get what really happened right. In the case of promising 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 their continuing motivation to deliver on the offer for as long as the promisee wishes that

26 they should. Secondly they are again invited to trust in the promisees capacity in this case in the promisees ability to provide what they have offered. The second invitation and its object is just as important as the first. When I promise to do something for you, I am inviting you to trust not only in my willingness to do it, but in 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 as promised, one doubts or disbelieves ones own capacity to deliver. Those who promise that they will pay the rent by Friday may be very motivated to pay as promised should they find the funds (which they may be very motivated to do as well); but they do not promise honestly if they doubt or disbelieve that by then they will actually have the funds required. But this account suggests that, far from being something peripheral and irrelevant to any account of promising to, promising that embodies a common essence and structure found in promising generally. In each case the commonality is the conjunction of an offer with an invitation to a twofold trust in the offeror in his motivation and in his capacity to deliver what is offered. We now see why Hume was wrong to think that only thoughts about obligation can motivate us to keep a promise. We can be motivated by a far less philosophical and far less moralistic thought. We can be motivated, as the doctor was in relation to his patient, by the simple thought that we have given our word. And now we see what giving ones word comes to something that, as I shall now suggest, is commonly a basis of obligation, but which in itself comes to something distinct from mere obligatoriness, and which can intelligibly figure as a motivating thought apart from it. In giving his word, the doctor has invited the patient to trust in him; and it is this conception of his relation to the patient which can on its own be what is motivating him to deliver on his promise. And that invitation to trust chimes with what the patient promisee wanted all along: the receipt not of an obligation in their favour, but of an offer with assurance of its delivery an offer in which the promisee can sensibly take trust. On this account it is the invitation to trust that explains the promissory obligation in such cases where a gratuitous promise does oblige. The question when do gratuitous promises oblige comes down to this: under what conditions does inviting someone to trust you to do something oblige you to do it? And restating the question in these terms really is explanatory. The appeal to an invitation to trust is not circular, a mere verbal variation on promise. For the idea of trustworthiness gives us independent purchase on when gratuitous promises give rise to obligations and when they do not, or at least not to obligations that are serious and clear. For example, the obligation to act as promised most convincingly and compellingly arises in those cases where the trustworthiness of the promisor most clearly matters to the promisee. And the promisors trustworthiness will certainly matter in a case of need where the promisee is vulnerable, and needs to entrust themselves to others. Equally it will matter when the promisor is an acquaintance or colleague or friend of the promisee. And in the case of a friend, it will matter more the greater the friendship involved. Which is, other things being equal, the greater the friend, the greater the wrong done by breaking promises made to them; the obligation attached to delivery becomes more serious with the friendship. Whereas the promise of 20 to the random stranger in no financial need is quite different. Here we saw that the existence of a real and binding moral obligation to deliver the money to the stranger is

27 very much more arguable. Even if the obligation does exist, it is not obvious that the stranger would be greatly wronged by non-delivery. Our theory clearly explains why the obligation is plausibly less serious and why even its very existence is at least debatable. For in this case it really is debatable how far the trustworthiness of the promisor in relation to his offer matters to the promisee. Certainly it is hard to see the trustworthiness of the promisor mattering very much; which is why no matter how determined and intent the promisor might be to obligate himself, it is so much harder to see a really serious moral obligation here. Notice, in particular, that the standard account of what promisors intend to communicate the account given by Finnis, Owens and Raz - does nothing to make promissory obligation plausible, and does so precisely because the interpretation it gives of promising has nothing to do with inviting trust. According to the standard account, when I make a promise, I am deliberately expressing an intention to obligate myself to you. But of course one can do that simply by explicitly asserting ones possession of that very intention. To the prosperous stranger in the financial district I could just say, It is my intention that I now be under an obligation to you to pay you 20 within half an hour. But such a linguistic performance taken on its own is hard to recognize as a normal promise. And the reason why is clear by now. Such a locution has nothing to do with inviting trust. Indeed it would be strictly consistent to combine such a locution which, after all, is about my obligations to you, rather than about my trustworthiness to you, with an actual disinvitation to trust: I intend to place myself under an obligation to you to pay you 20, but dont trust me to deliver on it. But how could such a locution ever oblige as gratuitous promises do, and what point would making it have? Since in gratuitous promising it is an invitation to trust which is essential to generating the obligation, it is quite vain to seek to impose a promissory obligation on oneself as promisor while explicitly discouraging trust. Not that trust need actually be given by the promisee for promises to oblige. It is perfectly possible for a promisee to be sceptical about a promisor without that scepticism in any way removing the promisors obligation to deliver. This is therefore not a variation on the expectational theory of promissory obligation, where the obligation to keep a promise is explained in terms of an obligation not to disappoint deliberately raised expectations of delivery.14 The expectational theory is not credible, in that promises can perfectly well oblige even when the promisee remains sceptical of actual delivery, and the promise has done nothing to raise those expectations. So what creates the obligation on the promisor cannot be the fact that he is actually trusted in by someone. Actual trust does not of itself obligate in any case. The person trusted might never have intended to receive such trust, or they might even have sought to discourage it. What generates the obligation is the fact that the trust, whether actually given or not, was deliberately invited. For deliberately to invite trust, and then to betray that trust for no good reason, and to do so in circumstances where ones trustworthiness clearly matters to the person betrayed, is to show them contempt. And it is that contempt that explains the peculiar sense of wrong felt by the victims of broken promises. Aside from any inconvenience caused by disappointed expectations and perhaps the promisees expectations were never very high there will be not merely a sense of having been wronged, but underlying this sense of having been wronged a feeling of having been trifled with. One has been treated with a degree of contempt; and for that reason one has been treated
14

For a recent version of the expectational theory, see T.M. Scanlon, What We Owe to Each Other, Harvard 1998, chapter 7.

28 wrongly. By not immediately characterizing promising as mode of voluntary selfobligation, we have managed to explain why the victims of broken promises should feel wronged, and why the wrong is felt so personally. Notice that it is perfectly possible effectively to make a promise without using expressions such as I promise. For one can perfectly well invite someone to trust one to do something, or invite someone to trust one in relation to ones assertion of a fact, without actually using words such as I promise to or I promise you that. But where performance promises are in question, and the promisee has a particular need for reassurance that the future action promised really will be performed, a promisor may sometimes go on to use such expressions, or promisees may insist on their use, as a further stage in the expression of commitment even once an invitation to trust has already been delivered. Thus a promisor may say: Trust me, Ill be there and thats a promise. Or a promisee may on hearing the words, Trust me, Ill be there, ask: Was that a promise? or Is that a promise?15 This might suggest to some that to utter the words I promise really is to do something distinct from and going beyond issuing a mere invitation to trust. On this view, what these cases show is that to add And thats a promise really is to express an intention to obligate oneself; and promisees insist on the use of such expressions even once an invitation to trust has already been made for one reason only - in order to ensure for themselves the receipt of a moral obligation in their favour where none would otherwise have existed. In which case, it might be concluded, we should move back to the standard account of promising and promissory obligation that we began by rejecting the account of promising as the expression of an intention to obligate oneself, an expression of intention that thereby mysteriously brings about the obligation supposedly intended. But is this reading really plausible? On this view, since inviting trust is one thing, but promising is quite another, one could sensibly issue a clear and explicit invitation to trust while disavowing any promise: Dont worry, trust me, I really will be there but Im not promising. Ones motive in saying this would be clearly and publicly to avoid an obligation to do it an obligation that, on this view, only actually making a promise would incur. But in reality such an expression is really very odd. We would never, in the ordinary course of things, clearly and emphatically invite someone to trust us that we will do something, and immediately deny that we are promising to do it. The disavowal of any promise would surely be heard, rather, as an eccentric withdrawal of the invitation to trust. The addressee would certainly no longer be inclined to place much trust in the thing being done for as long as they continued to wish it done. There is of course a way to make sense of the combination of an invitation to trust with an explicit refusal to promise. Suppose we are dealing with some special legal context where the utterance of certain words such as I promise or I contract creates a legally recognised contract, with rights enforceable under law attached to it, that might well not otherwise exist. Then, of course, there would be some clear intelligibility to inviting trust while still preferring unambiguously to avoid any such legally enforceable relation. Certainly, Trust me, I will do it, but Im not entering into any contract is an entirely intelligible thing to say. But then the function in such a context of I contract or I promise would not be to express any intention to incur a
15

My thanks to Jonathan Lear for emphasizing such cases to me.

29 moral obligation. Rather its function would simply be to trigger a purely legal or contractual obligation, the moral force of which might be very debatable, whether this purely legal obligation was intended or merely foreseen. And use of the phrase I promise does not usually have this specifically legal function. Ordinarily, clearly and emphatically to invite someone to trust us that we will do something just is, in effect, to promise them that we will do it, and will reliably be understood as such. If, after someones trust has been clearly and emphatically invited Trust me, I really will do it - the thing is not done, a claim made in justification of not doing it to the effect that I never actually promised to is unlikely to be heard with any patience. A real moral obligation to deliver comes with the invitation to trust; and one who issues an invitation to trust will be held bound by an obligation to deliver whether or not they actually used the word I promise and Thats a promise. They will, in other words, be treated as any promisor who has made a promise; and if they fail to deliver, they will be regarded as any promisebreaker. If a person whose trust is being invited already has a moral obligation in their favour, just by virtue of the fact that their trust has been invited, what are they seeking in asking Is that a promise? or Was that a promise? What they are seeking is not a moral obligation, which they may indeed possess already if any such obligation arises at all, but rather explicit acknowledgment from the promisor that through inviting trust a promise was being made and an obligation was incurred. That is, the function of I promise and thats a promise is not to express an intention to obligate oneself a intention that, as weve seen, a sincere user of such expressions, such as the doctor who honestly says I promise Ill be there in trying to comfort and reassure his patient, need not possess. Rather the use of such expressions is explicitly to acknowledge that a serious invitation to trust really is being made serious both in that its making really is intended by the promisor, and really does matter to the promisee, and matter to the point of obligating the promisor. Moreover emphasis is further given to the fact that the promisors offer and his motivation to deliver on it really is subject to the promisors continuing wish to receive it. For I can trust someone to do something, but to do it without any reference to my wishes. For example, I can trust them to do it whatever, or to do it subject to their continuing themselves to think that doing it would be in everyones interest, or subject to a variety of other conditions. But in promising the promisee is invited not just to trust in an actions being performed, but in the agents performance of it and motivation to perform being specifically conditional on the promisees wish that that the action be performed. The action is being offered to the promisee, as something that the promisee can refuse, or accept; but which, if he accepts, will be performed unless and until the promisee ceases to desire the actions performance and releases the promisor from his promise. Such a condition is typically understood by both parties in invitations of the form: Trust me, Ill be there, and is certainly understood in so far as such invitations to trust are heard as promises. The function of And thats a promise is, then, formally to confirm such an understanding. To make my invitation, its seriousness and its reference to the promisees wishes clear, I dont have to use the words And thats promise. But using those words or like expressions is one way of making it quite clear what I am doing. And the promisees interest in hearing such expressions now becomes obvious. It is not that they are essential to generating an obligation, which may anyway already have arisen,

30 and which in itself promisees often dont much want. What promisees seek from promisors, rather, is security and reassurance. And this is the point of And thats a promise. The promisors utterance of And thats a promise makes it clear to all parties that the promisor understands very well both what he is doing, and its personal and moral significance to the promisee. It is made very clear that the promisor is giving his word, and that he fully realizes that he is doing this and that this matters to the promisee. At least in the absence of independent evidence of the promisors dishonesty or incapacity, this all the more enables the promisee sensibly to put their trust in the promisor, something which the promisee wants to be able to do. Of course using the phrase And thats a promise may well increase the obligation on the promisor even if one would have arisen anyway. For in so far as it plausibly increases the level of trust invited, so too it adds to the contempt shown to the promisee, and so to the wrong done to the promisee, if for no good reason the promise is subsequently broken. Hence one can further understand why the false impression may have originally arisen that what we have here in the use of terms such as I promise is a quasi-legislative act an act that quasi-legislates obligations into existence just through the expression of an intention that those obligations exist. For certainly the explicit use of terms such as I promise may increase a promisors obligation to the promisee not by creating a new obligation with a different basis to any existing before, but rather by reinforcing the original basis of the obligation, which all along lies in the activity of inviting someones trust. Given that explicit use of the expression 'I promise' does serve to acknowledge the creation of an obligation, suspicious and mistrustful promisees have an evident interest in insisting on its use. For in so far as the expression serves to highlight one central outcome in many contexts of inviting trust - the creation of an obligation to deliver on the offer - and thereby adds to that obligation, use of that expression binds the promisor to the promisee in a public and unambiguous way. It is not so much that an obligation exists at all; for that obligation might have existed without the words. Rather, through the use of this expression, it is now explicitly acknowledged by the promisor what has been done: that the promisee's trust has been invited so as to obligate the promisor to deliver on his offer. That means that if the promisor has any interest in not breaching or at least in not being seen to breach an obligation to the promisor, that interest will motivate him to act as promised. And third parties who are inclined to enforce such obligations, or to apply social pressure on those who breach them, will then be more sure to act in this particular case. But the source of the obligation is all along the same, and independent of the use of such expressions: it lies in the issuance of an invitation to trust in a context where the trustworthiness of the promisor is of sufficient significance to the promisee to obligate delivery. Notice that alongside the use of the expression I promise to make a promise, there is an ironic use of it to issue a threat - as in If you trespass on my property again, I promise you Ill shoot you dead. Here there is no offer of an action promised as some kind of benefit to the promisee which they might choose to accept; nor is there an obligation on the offeror to perform the action promised should the offer be accepted. But of course, one could make the same threat in the same ironic manner by using the vocabulary of inviting trust: If you trespass on my property again, trust me, Ill shoot you dead. And it is plain in either case why the invitation is ironic, and why no genuine promise is being made. For the addressee is hardly being invited to take comfort and reassurance from the interlocutors motivation and capacity to

31 deliver on the promise. Rather the reverse is plainly true it is fear and dread that are being invited.

9. The morality of promising and of promise keeping We have then two quite distinct bases for the obligation to keep promises. One lies in peoples right to control the conditions under which they provide goods and services to others. Here the basis of the obligation to keep promises lies in a respect for liberty, and the failure to keep promises to others is akin to coercion of them. The other foundation for the obligation to keep promises lies in something rather different - a duty to respect an attachment of people to ourselves such that our trustworthiness matters to them, whether as those made dependent on others by need, or whether just as our neighbours or our friends. We should employ promises to provide genuine assurance and deliver on it, not to trifle with those to whom assurance matters; and here the failure to keep promises is wrong because it belittles others, and is a form of unkindness to them. So one and the same phenomenon of promising unites two contrasting aspects of our humanity: the liberty and moral independence of each individual, and the practical and emotional attachment of individuals to each other. Each basis of promissory obligation seems to leave the moral obligation to keep promises an obligation that is, in Pufendorf and Humes terms, natural rather than artificial. That is, the rights on the part of the promisee to delivery on the promise that are at stake in each case seem pre-conventional. There is no need for some existing practice of promise-making and keeping to exist for one to possess a right to control the conditions under which one does things for others. Similarly no conventional practice is required to make intelligible peoples general need to be able to trust others, and for that need to be respected by those who deliberately invite trust. This leaves the rights of promisees and the obligation of promisors to respect them importantly unlike the rights of property holders. For it is very intuitive that, just as Hume supposed, the right of a property holder to a particular good that he owns and the moral obligation of others to respect that right do depend on a developed system of conventions determining ownership conventions partly fixed by formal legal statute and partly found in informal custom. In the case of property, conventions fix ownership rights, and so are presupposed by any moral obligation to respect a given individuals ownership of a particular good. But property is not the same as promising, and Hume's attempt to assimilate the natural phenomenon of promising to being a supposed analogue of the artificial institution of property was mistaken. But while many promissory rights and obligations do have a natural basis, so that many are fixed preconventionally, some may still be artificial. For promising is a practice that is given some degree of legal recognition and enforcement in the form of legal contract. Here legal statute or legal custom will recognize certain promises and agreements as contractual, and establish certain legal rights and obligations in relation them as enforceable through legal process. And here it is arguable that our moral obligation to respect laws generally will morally oblige us to respect such legal rights and obligations. Here the immediate basis of our moral obligation to act as promised qua fulfil our contractual obligation may lie not in any pre-legal, natural

32 obligation to respect the liberty of another, or to deliver on an invitation to trust. For we may not have invited any trust. And perhaps in the contractual exchange the counterparty was not morally at liberty not to do what he has done for us. Here the immediate basis of our moral obligation to respect the contract may indeed consist in the simple existence of a certain contract, and so in a use of certain words or deeds by each party to constitute that contract. So just as there are convention-dependent property rights, equally there are convention-dependent contractual rights to receipt of goods and services. But that does not mean that the rights of promisees in general are convention-dependent, or that even in non-legal contexts, it is convention alone that determines or fixes the rights of promisees and so any moral obligation on the part of promisors to meet them. In the case of gratuitous promises there may be some temptation to play-act as if there were a quasi-contractual significance attaching to the use of words such as And thats a promise. Children especially may treat whether in inviting trust they or a parent used words such as I promise as if it did signify a sort of contract as if, that is, there really were a special moral obligation to keep the promise based just on the use of those particular words. And that is because children may actually often be involved, along with their adult guardians, in quasi-legal games or institutions of promise-making and promise-keeping, in which the specific use of certain words does engage entirely local 'family conventions' of penalisation or compensation for nonperformance. Here the function of the words 'I promise' may be precisely to engage those structures; and then it may matter that even if one may have invited trust, one did not actually use those words. But most adult promising is simply not like this, and is not plausibly to be modelled on family games of discipline and cooperation played with children. If obligations do arise in gratuitous promises made by adults, their basis seems very much to lie in the fact that trust was invited, and not in the use of certain words considered apart from such an invitation. Any adult who clearly and unmistakably invites trust and then seeks to evade what they have done by insisting that they never actually used the words 'I promise', would be reducing the ethical to the quasi-legality of a child's morality of 'black marks' and 'naughty steps'. If the use of words such as And thats a promise does have any significance in extra-legal contexts, it lies as we have seen both in rendering the fact of an invitation to trust and its exact terms unambiguous, and in deepening the level of trust invited, and so the wrong done to the promisee if the promise is broken. We have seen that not all promises are involved in some form of exchange that invokes the duty to respect the liberty of others. Some promises seem to oblige purely through constituting invitations to trust. On the other hand there are clear cases of contract and agreement where the opposite seems true; where the element of invited trust and the duties flowing from such an invitation seem not to be significant. If I take out a credit card, I agree and contract to pay off the debts incurred under it. But does my trustworthiness matter to the credit company, and am I even inviting them to trust me to repay? The card company is not seeking borrowers each of which it can individually trust, but simply wants to amass a vast credit book that achieves in total an ideal balance of risk and return. Too uniformly reliable a pool of card holders, and though there will be no defaults, their borrowings and the income generated on them will be too low. There is nothing, then, in the card companys relation to me analogous that of one awaiting the return of a sum loaned to a friend or neighbour to help them get by, and to whom the trustworthiness of that individual

33 borrower does matter, and not simply because they would like the money back. Some might insist that I am not standing as a genuine promisor to the card company; that in the absence of an invitation to trust, I agree to repay what I owe but do not really promise. But we could as well admit that we have here a case of promissory obligation rooted in the liberty of the promisee, rather than in their attachment to us. It would in any case be quite wrong to imagine a rigid distinction between, on the one hand, gratuitous promises that engage a respect for others as those to whom our trustworthiness matters and, on the other, contracts or promises in relation to exchange that engage a respect for their liberty. For exchanges between friends can engage both forms of respect, as can many commercial transactions where counterparties in commerce do also meet as at least acquaintances or as neighbours. The rigid distinction between a sphere of benevolence or love and a sphere of justice that we find in Pufendorf or Hume is simply not credible. There is no such rigid distinction between the spheres of justice and of love because it is the same human beings who combine the possession of moral liberty from their fellows with an attachment to them as neighbours or as friends or as sources of potential help and support; and because many of their dealings with each other involve both of these characteristics simultaneously. The practice of promising in relation to exchange has evolved amongst individuals who also seek assurance and care about each others trustworthiness. Hence the development of a single practice of making and keeping promises that can invoke two quite distinct bases of obligation bases of obligation that can fall apart, but that are so often found together. Early modern natural law theory involves two quite different approaches to this rather complex moral reality. The Catholic traditions sensitivity to the complexity of promising was genuine, though imperfect. We have seen that the ethics of promissory obligation involves a profound duality. Promising plays two quite distinct and separable roles in human life, and generates obligations through each role. So there are the two bases for the obligation to keep promises one lying in human liberty and independence, a right to determine the conditions under which ones services are provided to others; and the other lying in a human interdependence such that the trustworthiness of others matters to us. Yet the conditions and nature of the resultant obligation seem very similar. In both cases, the obligation involves a voluntary offer, and the promissory obligation depends on that offer being expressed and accepted, or at least not refused, by the promisee. And this tempts one to hypothesize a single origin for the obligation. The Catholic appeal to a quasilegislative power on the part of the promisor to obligate himself at will, subject at least to the consent of the promisee, was a misguided attempt to provide that single origin, and in so doing to link promising with other cases, such as legislation, where obligations appear to be imposed through the will. The Catholic tradition did not fully recognize the distinctness of the two bases of promissory obligation, in that the obligation to keep promises was in all cases given the same spurious, uniform quasi-legislative ground. On the other hand within this mistaken overarching theory of promissory obligation, Catholic writers did give some real recognition to the difference between the two possible grounds of promissory obligation. For within the framework of the quasi-legislative theory a distinction was drawn between importantly distinct kinds of virtue that were at stake in promisekeeping. Where promises involved in agreement and exchange were in question, the virtue at stake was iustitia or justice. Wrongful breach of promise here violated the

34 promisees right to his own. But where gratuitous promises were in question, not justice but another virtue might be at stake the virtue of fidelitas or faithfulness. In which case wrongful breach of promise involved faithlessness a breach, in effect, of trust. The Catholic natural law tradition may then have moved too quickly to an easy general theory of promissory obligation, the theory of a quasi-legislative power or authority over oneself. But, far more than in the Protestant tradition, due attention was paid both to the possible variety of kinds of promise, as well as to the possible variety of actual motivation and conception in the minds of individual promisors and promisees. Where the general theory clashed with particular reality, the particular reality would still be given some acknowledgement; and, as with Soto, that general theory might even be bracketed, rather than permit an implausible account to be given of the particular case. Crucial to this orientation to the particular must be the sacrament of penance, and the involvement of Catholic natural lawyers generally in hearing confessions themselves, or at least in advising those who did. There was a constant confrontation with what individual promisors and promisees actually do and feel. Whereas the interests and experiences of Protestant writers such as Pufendorf and Hume were quite different. Their interest in promising and agreement was primarily an interest in the theory of social and moral development, with pacta and conventions providing the foundations for new forms of social and moral reality.16 The supposed motor of this development, self-interest, is a motivation that seems pre-moral, and so it and the promises it motivated could be appealed to by them without fear of circularity when they sought to explain the creation of morality in adventitious form. That these Protestant writers so linked promising to self-interest was explicable enough. Self-interest does play a genuine role in the motivation of many promises. And this fact allowed these writers to concentrate theoretical attention on promising as a source of mutual advantage. But even in relation to mutually advantageous exchange, the final outcome, Humes conventionalist theory of promising and promissory obligation, was a brilliant disaster. Hume thought that the practice of making and keeping promises was merely a mechanism to facilitate mutual advantage. And certainly the point of exchanging promises and making agreements is indeed often to further the interests of promisor and promisee alike. But here Hume made his mistake. He took the motivation which people often have for exchanging promises in the first place, and sought to locate in it the source of the obligation to act as promised. But as we have seen, the obligations that arise in promising are not explicable in these terms at all. Whatever our motivation for making promises in the first place, the source of the obligation to keep them once made lies not in mutual advantage, but in natural morality, of which promising and promissory obligation is natively a part, and in the complex moral significance which our own and our neighbours common humanity naturally has for each of us. Thomas Pink
16

Not that these interests were at all absent from Catholic natural law theory, as I discuss elsewhere. But they could not dominate other concerns as they did in Protestant writing.

35 Department of Philosophy King's College London tom.pink@kcl.ac.uk