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The Unrecognized Dominance of Law in Morality: The Case of Promises

Published online by Cambridge University Press:  20 July 2015

Ronit Donyets Kedar
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The commonplace view is that moral thinking has significantly influenced legal theory, but law has had very little theoretical effect on morality. In this article, I attempt to show this is not so. Taking the inverse course in tracing the interrelations between law and morality – investigating morality from the perspective of law rather than examining law from the perspective of morality – I show, through the case of promises, that legal theory has greatly affected dominant strands of moral thought. By bringing to the fore the robust legal elements that guide some of the prevailing moral theories, my aim is to offer a new diagnosis of their problems, showing that the legal mindset is what distorts their moral analysis.

I start by offering a list of law’s special underpinnings. Predicating law as a unique social phenomenon and, as such, as possessing certain features that distinguish it from other normative domains, this list, though not a definition of law as such, presents a sufficiently inclusive account of what it means for a normative theory to be legal or legal-oriented. This profile serves as a tool helping to discern, for the first time, the unrecognized influences of legal thinking on other normative domains, and to reveal whether, and to what extent, some normative accounts rest on and are affected by legal ideas, tools, terminology, and structure. Applying this model to the analysis of promises offered by such thinkers as Charles Fried, John Rawls, and T. M. Scanlon, I show how their legal mindset shapes their moral accounts of promises. My conclusions indicate that the unaccounted for influence of legal ideas on morality in general, and on the morality of promises in particular, leads to an unsatisfactory conception of both.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 24 , Issue 1 , January 2011 , pp. 79 - 107
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Copyright © Canadian Journal of Law and Jurisprudence 2011

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References

I thank Liam Murphy, Stephen Perry, Noah Feldman, David Enoch, Roy Kreitner, Gilad Shirman and Nir Kedar for their very helpful comments on earlier drafts of this manuscript.

1. Raz, Joseph, “Promises in Morality and Law” (1982) 95 Harv. L. Rev. 916 CrossRefGoogle Scholar.

2. Ibid. at n. 3.

3. John Rawls and T.M. Scanlon are the most prominent among such views. For a related discussion, albeit on principles of justice rather than morality, see Gibbard, Allan, “Constructing Justice” (1991) Phil. & Pub. Affairs 20 (3) 264—79 Google Scholar; Barry, Brian, Theories of Justice (Berkeley: University of California Press, 1989)Google Scholar; Buchanan, Allen, “Justice as Reciprocity” (1990) 19 (3) Phil. & Pub. Affairs 227 Google Scholar.

4. See generally Fried, Charles, Contract as Promise: A Theory of Contractual Obligation (Cambridge, MA: Harvard University Press, 1981)Google Scholar; Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) at 342—50 Google Scholar; Scanlon, T.M., “Promises and Contracts” in Benson, Peter, ed., The Theory of Contract Law: New Essays (Cambridge: Cambridge University Press, 2001) 86 CrossRefGoogle Scholar. Significantly, Scanlon asserts that promise and contract are parallel concepts that respond to the same underlying ideas but in different ways, and are consequently independent of each other. I will argue below that, although the distinction that Scanlon aims to draw is desirable in an interpersonal morality, his analysis nonetheless fails to regard these two concepts distinctively. For a discussion, see below at 13ff; see also Atiyah, P.S., Promises, Morals and Law (Oxford: Clarendon Press, 1981)Google Scholar; Patterson, Dennis M., “The Value of a Promise” (1992) 11 (4) L. & Phil. 385 CrossRefGoogle Scholar.

5. See Fried, ibid.

6. See Rawls, supra note 4 at 342-50.

7. The classical, legal oriented view of promising that these three thinkers represent, while prevalent, is not the only existing approach to promises or to the relationship between promise and contract, or promise and law. Possibly first set out by Ian Macneil and followed by others, notions of the relational elements of contracts have been considered and adopted by both philosophers and legal scholars. See, e.g., Macneil, Ian R., “The Many Futures of Contract” (1974) 47 S. Cal. L. Rev. 691 Google Scholar; Macneil, Ian, The New Social Contract (New Haven, CT: Yale University Press, 1980)Google Scholar; Campbell, David, ed., The Relational Theory of Contract: Selected Works of Ian Macneil (London: Sweet & Maxwell, 2001)Google Scholar; see also Markovits, Daniel, “Contract and Collaboration” (2004) 113 Yale L.J. 1417 CrossRefGoogle Scholar; Pratt, Michael G., “Contract: Not Promise” (2008) 35 Fla. St. U. L. Rev. 801 Google Scholar. These relational approaches, stressing elements of solidarity and cooperation in contracts, exposing the imbalance of bargaining power, and so forth, significantly depart from the classical view of contracts and have surely influenced philosophers’ conception of promises and of the promisecontract-law relations. The task of investigating whether these relational contract theories are also vulnerable to the critique I set forth in this essay, or whether they alter the way we think about contract law and, consequently, what it means to have a “legal” orientation, goes beyond the scope of this piece. My aim here is to show what is wrong with the classical view of promising, claiming it is too legal in its orientation. The essay therefore targets the shortcomings of the three classical accounts of Fried, Rawls, and Scanlon, leaving the relational ones untouched.

8. For a general introduction to the question what the law is, see, among many others, Coleman, Jules & Murphy, Jeffrie G., The Philosophy of Law: An Introduction to Jurisprudence (Totowa, NJ: Rowman & Allanheld, 1984)Google Scholar; for a comprehensive discussion of the concept of law in general, the interrelations between law and morality, and the dispute on positivism in law, see works of H.L.A Hart; for an opposite view on the relation between law and morality, see Gustav Radbruch#x2019;s view (in English): Paulson, Stanley L., “Lon L. Fuller, Gustav Radbruch and the #x2018;Positivist#x2019; Thesis” (1994)13(3) L. & Phil. 313 Google Scholar; Radbruch, Gustav, “Legal Philosophy” in Wilk, Kurt, trans., The Legal Philosophies of Lask, Radbruch and Dabin, vol. 4 (20th Century Legal Philosophy Series) (Cambridge, MA: Harvard University Press, 1950) 49 Google Scholar; for a different positivist view of law, see Hans Kelsen. For a natural law view of law, see John Finnis. For other conceptions of law, see Lon L. Fuller, Ronald Dworkin, Joseph Raz. For the debate on formalism v. realism in law, see Morton J. Horwitz, Morton G. White, Jerome Frank, Oliver Wendell Holmes, Karl Llewellyn. For a critical theory of law on law’s social role and questions of dominance and hegemony in society via law, see works of Duncan Kennedy, Roberto Unger, Mark Kelman, Robin West, Catherine MacKinnon; for an economic analysis of law, see Richard A. Posner; for a discussion on the normativity of law, see, e.g., Perry, Stephen, “Law and Obligation” (2005) 50 Am. J. Juris. 263 CrossRefGoogle Scholar. My discussion here is not meant to take a stand on the different debates in legal philosophy. Rather, in an important sense, my discussion here precedes such questions. Thus, by arguing that law is a system of rules for the general regulation of behavior, I do not address the question of whether such rules are necessarily open-ended, or whether it is possible for legal rules to give us one right answer. Similarly, the question of whether these rules have to meet some “higher” standard to be considered law is secondary to my discussion. The discussion here is meant to present the elements of law in their most immediate sense, with the purpose of offering an inclusive model of law that will serve to assess other normative domains.

9. This is an explicit demand of Fuller for what he terms “the inner morality of law,” but its logic is the leitmotif that runs throughout his account of what law should be like. See Fuller, Lon L., The Morality of Law (New Haven, CT: Yale University Press, 1964).Google Scholar

10. Just how central the features of precision and quantifiability are to legal thought is evident through an examination of some of the most formative discussions within American legal theory: the debate between the schools of legal formalism, legal realism, and the CLS movement essentially revolves around the possibility for the determinacy of rules. Similarly, the debates between Hart and Dworkin, or between legal positivism and different types of legal idealism, stem from this same feature of the law.

11. A number of sports—ski jumps, gymnastics or diving—are more sensitive to aesthetics and athleticism. In those sports as well, though, the marks given to athletes for their performance are largely determined by strict and formal rules. One exception is, for example, ice-skating, where the athletes are graded both for technical merit and artistic performance.

12. See henceforth the discussion of promises in sections II-V For an example that supports my argument here, see Fuller’s distinction between the morality of duty and the morality of aspiration. Whereas the morality of aspiration, “is the morality of the Good Life, of excellence, of the fullest realization of human powers….” The morality of duty, “lays down the basic rules without which an ordered society is impossible.” The principles of the good according to the morality of aspiration are “vague and indeterminate, and presents us rather with a general idea of perfection.” See Fuller, supra note 9 at 5.

13. Schneewind, Jerome B., The Invention of Autonomy (Cambridge: Cambridge University Press, 1998).Google Scholar

14. Feminist theory and communitarian philosophy have challenged in a related manner, albeit mainly in political philosophy, the “individualistic self” that stands at the heart of political liberal theory and Neo-Kantian morality. Arguing against the atomistic conception of persons as autonomous, rational choosers, interacting with similarly situated persons, feminist and communitarian theories exposed the inability of Western liberal thought to account for other types of relations or for situations of interdependence and connectedness. While not attacking contractualist ethical theory in particular or diagnosing the problems of Western liberal morality as stemming from a legal mind-set, the challenge posed by these critical theories to the individualistic conception of persons rests on the same grounds as those I offer here. See Gilligan, Carol, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press, 1982)Google Scholar; Held, Virginia, Feminist Morality: Transforming Culture, Society and Politics (Chicago, IL: University of Chicago Press, 1993)Google Scholar; see also Williams, Bernard, Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985)Google Scholar; Taylor, Charles, Sources of the Self: The Making of the Modern Identity (Cambridge: Harvard University Press, 1989)Google Scholar; Taylor, Charles, Philosophy and the Human Sciences: Philosophical Papers 2 (Cambridge: Cambridge University Press, 1985)CrossRefGoogle Scholar; Sandel, Michael J., Liberalism and the Limits of Justice, 2nd ed. (Cambridge: Cambridge University Press, 1998)CrossRefGoogle Scholar. Along the same lines, Martha Nussbaum makes a strong argument against Rawls. See Nussbaum, Martha, Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge, MA: Belknap Press, Harvard University Press, 2006).Google Scholar

15. The question of the legitimacy of law and the relations between legitimacy and authority has, for centuries, been central to discussions of law. See generally Rosenfeld, Michel, “Contract and Justice: The Relations Between Classical Contract and Legal Theory” (1985) 70 Iowa L. Rev. 769 Google Scholar.

16. From a Kantian perspective, legal obligations even enhance personal freedom: the stability, certainty and security provided by a network of legal obligations (that all members of the community are obliged to comply with, as noted), may limit the range of permissible conduct in specific issues but, on the whole, allow members of the community to rely on a well-ordered social structure. By complying with their duties, all members of the community are freer than before. In the next section, I discuss a similar line of argument by Fried in regard to promises. See Fried, supra note 4.

17. On whether over-demandingness in morality is indeed that or should be explained in terms of fairness, see Murphy, Liam B., Moral Demands in Non-Ideal Theory (Oxford: Oxford University Press, 2000)Google Scholar.

18. Bernard Williams argues that thinking about these concepts in terms of demands is counter-moral. See Williams, supra note 14.

19. “The duty to vote is not absolute, but depends upon fulfillment of certain expectations concerning the actions of others.” Fuller, supra note 9 at 21.

20. Cf. Miller, David, “The Macpherson Version” (1982) 30 (1) Political Stud. 120 CrossRefGoogle Scholar.

21. Fuller, Lon L., “Pashukanis and Vyshinsky: A Study in the Development of Marxist Legal Theory” (1949) 47 Mich. L. Rev. 1157 CrossRefGoogle Scholar.

22. I use the term “voluntary” in a narrow sense: in order to make a valid promise, the promisor has to undertake the obligation out of her own free will, but she may be in a situation where promising is “the right thing to do” in the context of the relationship. Law-centered morality uses a wider sense for voluntariness. As I argue below, the focus of law-centered contractualists on a wider understanding of the voluntariness of the promisor is a legacy from the more general legal discussion of choice and accountability.

23. See Raz, supra note 1 at 929.

24. Ibid. at 929.

25. Ibid. at 931.

26. It bears emphasis that a relational account acknowledges promises made in a commercial context. Like any other promise under the relational account of promises, these promises are to be analyzed, discussed, and interpreted in light of the context in which they were made—and in this case—the commercial context.

27. See Fried, supra note 4 at 8 [emphasis in original].

28. Ibid. at 7 [emphasis added].

29. Ibid. at 8.

30. Ibid. at 1.

31. Ibid. at 17.

32. See ibid. at 16. A relational account of promises rejects the argument that the wrong of breaking a promise stems from unfairly invoking a social convention. While Fried’s account of promises indeed makes use of this type of “social practice argument,” it is Rawls who offers the most robust social convention argument. I will therefore postpone the “social practice discussion” to the next section, where I discuss Rawls’ account of promises. With regard to Fried, I focus on the part of his account that relies on autonomy and trust and will argue that, grounded in a law-centered structure, Fried’s moral account of promises is both instrumental and wrong.

33. Ibid. at 8.

34. It could be argued that, even for Kant, thinking of others merely as means is objectionable but there is no problem, not even according to Kant, in treating others as a means so long as we also treat them as ends. It could thus be said that my argument merely shows that, for Fried, the practice of promising involves treating others instrumentally, but not only instrumentally. My reply to this is twofold. First, I believe we want more: the very concept of using others, even if not solely as means, is not enough. Second, Fried’s shift from a benign, even if self-based conception of autonomy, to an instrumental view of others, is a tacit and therefore unaccounted move.

35. See generally Fried, supra note 4 at 10.

36. Baier, Annette, Moral Prejudices: Essays on Ethics (Cambridge, MA: Harvard University Press, 1994) at 99 Google Scholar. Hannah Arendt’s view on promises, very much in this direction, is inspiring. Arendt draws a parallel between promising and forgiving as two redeeming actions between people. While forgiving is retroactive and serves to undo past wrongs, promising is forward looking, and is aimed to assure future trust. See Arendt, Hanna, The Human Condition (Chicago, IL: University of Chicago Press, 1958) at 237 Google Scholar.

37. See Rawls, supra note 4 at 344.

38. Ibid. at 342-43.

39. Provided that this scheme, or institution, is just. See ibid.at 346-47.

40. Ibid. at 345.

41. Ibid. at 343.

42. Ibid. at 345.

43. It should be reiterated that thinking about promises in a context of relationships does not rule out the possibility of bilateral promises in a commercial context. These promises, like all others, will be considered within the framework of the circumstances that brought them about, that is, commercial relationships and their standards.

44. The question of whether the motivation to act morally is based on reasons or desires lies beyond the scope of this work. This phrasing of moral motivation in terms of reasons rather than desires reflects Scanlon’s current view in What We Owe to Each Other. In his “Contractualism and Utilitarianism,” Scanlon described the motivational basis of morality in terms of a desire to act in ways justifiable to others. See his discussion of the difference in Scanlon, T.M., What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1998) especially at 6—8 Google Scholar. See also Scanlon, T.M., “Contractualism and utilitarianism” in Sen, Amartya & Williams, Bernard, eds., Utilitarianism and beyond (Cambridge: Cambridge University Press, 1982) 103 at 114CrossRefGoogle Scholar.

45. Scanlon, What We Owe to Each Other, ibid. at 5.

46. Ibid. at 153.

47. Donyets-Kedar, Ronit, Owing More To Each Other: The Inner Legality of Morals (Ph.D. thesis, New York University School of Law, 2006)Google Scholar [unpublished].

48. Scanlon, “Promises and Contracts,” supra note 4. Except for the section on the moral permissibility of legal enforcement of the principles that, according Scanlon, provide the moral grounds for promises, the ideas that Thomas Scanlon presents in this piece follow mostly his earlier “Promises and Practices” in (1990)19(3) Phil. & Pub. Affairs 199. Similarly, his views on promises are presented in chapter seven of What We Owe to Each Other, supra note 44.

49. Scanlon, “Promises and Contracts,” supra note 4 at 86-87.

50. T.M. Scanlon, What We Owe to Each Other, supra note 44 at 296. See also ibid. at 87.

51. The contractualist framework of morality is formulated in Scanlon, What We Owe to Each Other, ibid. note 44, especially chapters four (“Wrongness and Reasons”) and five (“The Structure of Contractualism”).

52. In this sense, the problem with Scanlon’s account of promises is an instance of the problem posed by his moral account in general.

53. Scanlon, “Promises and Contracts,” supra note 4 at 87.

54. Scanlon regards these obligations as similar in kind to the obligation to keep one’s promise, as they are “instances of a more general family of moral wrongs.” (See Scanlon, “Promises and Contracts,” supra note 4 at 87. Dennis Patterson describes the entire spectrum as follows: intentionally leading others to falsely believe that one will act in a certain way (unjustly Manipulating) or negligently so leading them (the principle of Due care), requires one to compensate for losses inflicted by this behavior (the principle of Loss prevention). In case that compensation will not do, however, specific performance is required (Fidelity to one’s promise). See also Patterson, supra note 4 at 390.

55. The first and paradigmatic example Scanlon discusses is that of two farmers with two adjacent pieces of land. One farmer is contemplating how to get his neighbor to help him build up the banks of the stream that runs through his plot in exchange for him helping his neighbor do the same. Another example discusses the reciprocal exchange of promises according to which one person would drive the other to work, in exchange for the other mowing the driver’s lawn. See Scanlon, “Promises and Contracts,” supra note 4 at 88.

56. Ibid. at 89 [emphasis added].

57. Principle D states as follows: “One must exercise due care not to lead others to form reasonable but false expectations about what one will do when there is reason to believe that they would suffer significant loss as a result of relying on these expectations.” Ibid. at 91.

58. Scanlon’s analysis of promises rather than of the “family” of obligations to which promises belong is different, especially in the sense that the principle of fidelity obtains even when there has been no act of reliance by the promisee. See ibid. As I will argue below, however, Scanlon’s analysis of the obligation to keep one’s promise is nonetheless legal in its orientation.

59. Recall that Scanlon defines his “formula of wrongness” as follows: “[A]n act is wrong if its performance under the circumstances would be disallowed by any set of principles for the general regulation of behavior that no one could reasonably reject as a basis for informed, unforced, general agreement.” See Scanlon, What We Owe to Each Other, supra note 44.

60. Scanlon takes his formula of wrongness to apply in the same way to each of these principles, including principle F (fidelity to one’s promise). My reason for discussing principle M here is that this is the first principle that Scanlon discusses in regard to promises, and his account of it is therefore the most elaborate.

61. See Scanlon, “Promises and Contracts,” supra note 4 at 89.

62. Ibid.

63. Raz, by contrast, states that promises are among our “obligations to others … with which we have long-lasting connections that are at least in part of our own making…. We mold each one of them individually, but they all fall within socially or culturally recognizable patterns of both acceptable relations and deviations from them.” Raz, supra note 1 at 928 [emphasis added]. Society, then, plays a significant but completely different role for Raz: because our relationships assume the form of socially recognizable patterns, society provides the context for implementing the normative implications of our behavior. The source of wrongness, then, is not society but the effects of our behavior on the other persons. See Raz, supra note 1 at 928.

64. See Scanlon, “Promises and Contracts,” supra note 4 at 95.

65. Ibid.

66. Scanlon, supra note 48 at 206-08.

67. Ibid. at 208 [emphasis added].

68. Pointing to an example of a drive to work in return for lawn mowing, Scanlon claims that, in the usual understanding of promises, the driver cannot simply call up the lawn mower to say he has changed his mind about the deal. Ibid. at 205.

69. Scanlon, “Promises and Contracts,” supra note 4 at 95.

70. This, of course, depends on the type of the relationship, and on the significance of the promise to the promisee.

71. Scanlon, “Promises and Contracts,” supra note 4.

72. As shown in the next subsection, Scanlon holds, and for the very same reasons, that a principle like principle F should also be legally enforceable.

73. Scanlon, “Promises and Contracts,” supra note 4 at 95. These values are taken from Fuller and Perdue’s discussion of expectation interests that need to be protected in case a promise or a contract are broken. See Fuller, L.L. & Purdue, William R., Jr., “The Reliance Interest in Contract Damages: 1” (1936) 46 Yale L.J. 52 CrossRefGoogle Scholar.

74. As I show below, Scanlon’s analysis of principle F and the subsequent principle EF share the same structure. See Scanlon, “Promises and Contracts,” supra note 4 at 105-11.

75. Ibid. at 107-08 [emphasis added]. Note that principle EF discusses the enforceability and remedies for breach of contract.