Companion
to: Jody S. Kraus, The Correspondence of Contract
and Promise, 109 Colum. L. Rev. 1603 (2009).
Correspondence
accounts of the relationship between contract and promise hold either that
contract law is justified to the extent it enforces a corresponding moral
responsibility for a promise or unjustified to the extent it undermines
promissory morality by refusing to enforce a corresponding moral responsibility
for a promise. In “The Correspondence of
Contract and Promise,” I claim that contract scholars have mistakenly presumed
that they can assess the correspondence between
contract and promise without first providing a theory of self-imposed moral
responsibility that explains and justifies the promise principle.1 To illustrate the dependence of
correspondence accounts of contract law on a theory of self-imposed moral
responsibility, I demonstrate how a “personal sovereignty” account of
individual autonomy—one of the most familiar and intuitive theories of
self-imposed moral responsibility—explains how and why, contrary to existing
correspondence theories, promissory responsibility corresponds to the objective
theory of intent, the doctrines of consideration and promissory estoppel, and most
remedial contract doctrines, including the bar against mandatory punitive
damages, the foreseeability limitation on consequential damages, the mitigation
doctrine, and expectation damages, the paradigm example of a contract doctrine
alleged to conflict with promissory morality.
I conclude that correspondence theorists can defend their critiques of
contract law only by rejecting the personal sovereignty theory of self-imposed
moral responsibility, defending an alternative theory, and explaining why any
resulting divergence between contract law and its requirements is
objectionable.
The
personal sovereignty account of promising therefore plays a crucial role in my
analysis of correspondence theories of contract. For purposes of that analysis, I described
how personal sovereignty explains promissory obligation:
[P]ersonal
sovereignty . . . recognizes the fundamental right of
individuals not only to choose their system of ends but also to choose how to
pursue those ends. Promising constitutes
a particularly valuable means for pursuing ends. . . . [I]f
morality itself can provide individuals a valuable means of pursuing their ends
simply by recognizing the individual moral power to undertake self-imposed
moral responsibilities, a moral theory committed to personal sovereignty as a
fundamental moral value would have no grounds for refusing to recognize such a
power. Personal sovereignty therefore
counts the moral capacity to undertake self-imposed moral responsibilities as a
basic individual liberty. By affirming the fundamental right of
individuals to choose how to pursue their desired ends, personal sovereignty
necessarily affirms the category of moral responsibility that obligation
describes. The moral power to make—and
thus the moral obligation to keep—a promise is therefore an axiom of personal
sovereignty.2
According
to this account of promising, individuals have the normative power to undertake
self-imposed moral responsibilities (i.e., moral obligations) because such a
power enhances personal sovereignty.3
A moral theory with a foundational commitment to personal sovereignty
would therefore give moral effect to attempts to undertake such a
responsibility. Although I find this an
intuitive understanding of the logic of moral justification, some philosophers
have doubted that morality can simply “give moral effect” to attempts to create
moral responsibility. They argue that
this view begs the fundamental question of whether individuals have the
normative power to create moral responsibilities, as promises purport to do, by
simply communicating an intention to undertake such responsibility. In Part I of this companion piece, I explain
the skeptical argument that has been leveled against other theories of
promissory obligation. In Part II, I argue
that it has no force against the personal sovereignty account I offer.
I. The Skeptical Argument
Joseph Raz’s
account of promissory obligation holds that promises are morally binding
because many intrinsically valuable special relationships are possible only if
they are.4 Raz’s view therefore holds that individuals
have the normative power to promise because such a power would be
valuable. The contemporary version of
the skeptical argument rejects this argument.
Thus, Michael Pratt argues:
That
it is desirable to be able to bind oneself to another by means of communicating
an intention to do so, provides no reason to suppose that it is possible to
obligate oneself in that manner. The
value of making binding promises does not, in other words, provide any reason
for thinking that the rule that promises ought to be kept is valid.5
Pratt
here echoes an objection that Don Regan years ago leveled against Raz’s account
of why consent is morally binding. Regan
takes the claim that consent is morally binding to mean that consent provides
an individual with a reason for action that weighs in the ultimate balance of
his reasons for acting in accordance with his consent. Regan explains, however, that Raz’s argument
proceeds from the premise that “[i]t would be a good thing if consent were
binding” to the conclusion that “[c]onsent is binding.”6
But the argument form “It would be a good thing if X. Therefore, X” is a nonsequitur. Thus, Regan claims, the argument “It
would be a good thing if promises were binding.
Therefore they are,” is invalid as well.7
Although Regan acknowledges that no one believes the general argument
form is valid—no one believes that we can simply infer that X is true because
it would be a good thing if X were true—he speculates that philosophers believe
it is valid when applied to morality:
The
underlying idea would be that morality is not a set of facts about the
universe, but rather a set of ideas and practices we invent. So, if we have a moral belief, and if it is a
good thing that we have that moral belief, that is all the warrant one could
possibly want for saying the moral belief is true.8
Regan
rejects this view, roughly, because he believes that whether an action is
morally right or wrong turns on moral facts independent of our beliefs about
our moral responsibilities. For Regan,
an action is morally right or wrong because of its consequences: “[P]eople ought to do acts which can be
expected to have good consequences.”9 The moral assessment of actions, therefore,
turns on whether they promote good or bad consequences.10
Thus, Regan concludes that promises are not morally binding—they do not
provide the promisor with a reason for keeping the promise that always weighs
in the balance of his reasons for action.
Instead, their moral force depends entirely on the consequences of
keeping them. That the promisor promised
to do the act provides no independent reason for doing it. Regan concludes that whether it would be a
good thing, from some point of view, that a promise created a moral obligation
to perform the promised act has no bearing on whether it in fact does create a
moral obligation.
David
Owens traces this fundamental skepticism about the moral force of promising
back to David Hume. Owens reconstructs
Hume’s problem nicely:
What
makes breach of promise a wronging is that someone has communicated the
intention that it be a wronging . . . . Now something can
be declared to be wrongful in this way whether or not it is harmful or
constitutes unjust enrichment, or has any further feature in which human beings
might sensibly take an interest. So such
wrongfulness raises the problem of bare wronging: What sense is there in refraining from doing
something simply because it has been declared to be wrongful? Conversely, how could bare wronging,
wrongings which have no adverse effect on anything that matters to us come into
being unless we do indeed have the power to create them by declaration?11
As
Owens explains, the puzzlement underlying this question stems from the
assumption that it “makes sense to do something because you are obliged to do
it only if the discharge of this obligation would serve some interest, where
the interest in question can be specified without using the notion of an
obligation.”12
Most promise theorists presume that this interest must be a human
interest, something which it makes sense to want or value.13
So the problem is to explain why keeping a promise serves some sensible
interest or value that human beings have.
But unless the relevant interest or value is necessarily promoted by
keeping a promise, or necessarily undermined by breaking a promise, any account
of promising that traces its moral force to its effects on a distinct interest
or value will render promissory obligation contingent, dependent entirely on
whether keeping a promise in any given instance promotes that interest or
value. So conceived, it seems impossible
to provide an account of promising that vindicates the common belief that
promises create moral obligations irrespective of the consequences of breach—that
promises always provide promisors with a reason to perform the promised act,
even if those reasons might sometimes be outweighed by other competing
reasons. In short, the skeptical
argument originating with Hume and reformulated by Regan and Pratt claims that
promising could create a genuinely deontic obligation only if promise-breaking
necessarily undermines some independent human interest or value.14
II. A Deontic Reply
In this
Part, I explain how the personal sovereignty account of promising I offer
provides a deontic foundation for promissory obligation that does not depend on
the effects of promise-keeping or promise-breaking. In so doing, I explain why I reject the
implicit premise that underwrites Humean skepticism.
The
personal sovereignty account of promising has much in common with the account
of promising Raz defends. According to
Raz:
[T]o
acknowledge the validity of voluntary obligations . . . is to
accept a rather unfashionable view of practical reason. It is a view according to which what a man
ought to do depends not only on the ways things happen to turn out in the world . . . .
What one ought to do depends in part on oneself . . . [in part]
because the agent has the power intentionally to shape the form of his moral
world, to obligate himself to follow certain goals, or to create bonds and
alliances with certain people and not others.
It seems to me that many have become so preoccupied with the way
considerations of human welfare affect what one ought to do that they become
blind to the existence of this other dimension to our practical life.15
I
share Raz’s conviction that promising is a crucial moral device for pursuing
one’s projects and creating special relationships. This much, which few would doubt, is enough
to explain why individuals would care about having the power to undertake
self-imposed obligations. But Raz also
argues that promises create moral obligations only “if the creation of . . .
special relationships between people is held to be valuable.”16
As we’ve seen, for Raz, the justification of promissory obligation
depends on “the intrinsic desirability of forms of life in which people create
or acknowledge special bonds between them and certain other individuals.”17
Thus,
The
right to promise is based on the promisor’s interest to be able to forge
special bonds with other people. . . . Those who assign sufficient
importance to the interest people have in being able to impose on themselves
obligations to other people as a means of creating special bonds with other
people believe in a right to promise. . . . [P]eople’s interest
in being able to bind themselves is the basis of a power to promise which they
possess and of an obligation to keep promises they make.18
The
personal sovereignty account, however, does not ground the normative power to
make, and the moral obligation to keep, a promise on its causal effects,
including their role in facilitating the pursuit of projects and forming
special relationships. Instead, it
derives the normative power to make, and the moral obligation to keep, a
promise from the foundational normative premise that individuals are morally
entitled to decide how to live their lives as they see fit, consistent with a
like liberty for others. The personal
sovereignty account understands Raz’s conclusion that “the agent has the power
intentionally to shape the form of his moral world”19 to follow not from the valuable
activities and relationships it makes possible but from the same prior
normative commitment to a conception of the individual as sovereign over all
matters exclusively affecting his own life.
Just as individuals have the sole right to decide whether they will eat
meat, devote themselves to a meditative practice, or become a lawyer, so they
can decide for themselves whether to undertake a moral responsibility they are
otherwise free to avoid.
If
morality is committed to the value of personal sovereignty, then it affords
individuals the maximum morally permissible control over “the shape of their
moral world.” To be sure, a moral theory
that recognizes the fundamental value of personal sovereignty cannot delegate
individuals’ control over the moral duties to which they are subject because these are grounded in the principle of equal
respect for the personal sovereignty of all individuals. To enhance one individual’s personal
sovereignty by allowing him to avoid moral responsibility to others necessarily
and simultaneously diminishes respect for the personal sovereignty of the other
individuals to whom that individual would no longer be morally
responsible. Moral duties therefore
define, rather than fall within, the realm over which individuals are
personally sovereign. In contrast, by
recognizing the power of individuals to undertake moral obligations, morality enhances everyone’s control over their lives—their
power to “shape the form of their moral world”—without diminishing the personal
sovereignty of others.
Thus,
although this account of personal sovereignty does not rest on its role in
enabling individuals to realize valuable relationships or to pursue their
valuable projects, it is nonetheless animated by the same ideas that inform the
conception of autonomy that Raz embraces:
The
ruling idea behind the ideal of personal autonomy is that people should make
their own lives. The autonomous person is a (part) author of his own life. The ideal of personal autonomy is the vision of
people controlling, to some degree, their own destiny, fashioning it through
successive decisions throughout their lives.20
If
morality imposes duties and recognizes rights that it derives from the values
it takes to be fundamental, and personal sovereignty is among the fundamental
values morality affirms, then morality must recognize the duties and rights
derived from personal sovereignty. The
ability to undertake self-imposed moral obligations enhances personal sovereignty
by affording individuals more control over the norms that apply to them. A moral theory therefore cannot consistently
affirm the fundamental value of personal sovereignty and yet deny the power and
obligation of promising.
The
personal sovereignty account of promissory responsibility, however, appears to
commit precisely the fallacy that Hume, Regan, and Pratt have identified. Having the normative power to create
self-imposed obligations by promising may well enhance personal sovereignty. Yet the skeptical view denies that this constitutes
an argument to demonstrate that such a power exists. As Regan puts the point, from the fact that
it would be desirable if something were true, it certainly does not follow as a
general matter that it is true. Why
should this be otherwise when it comes to moral truth? Perhaps personal sovereignty does not include
the power to undertake self-imposed moral obligations because self-imposed
moral obligations simply do not exist.
One can no more demonstrate the existence of the normative power of promising
by observing that this power would enhance personal sovereignty than one could
demonstrate the existence of a million dollars in my bank account by observing
that this money would enhance my financial sovereignty. What is needed is an argument explaining how
promissory obligation is possible, not an argument demonstrating why it would
be a good thing if it were.
The
skeptical argument proceeds, however, on the basis of a crucial suppressed
premise that Owens has identified: “[T]he
problem of bare wronging arises only if we impose some substantive constraints
on what kinds of consideration can make sense of an action.”21
Thus, many philosophers believe that an adequate account of promissory
obligation must provide an account that explains the moral force of a promise
in terms of more basic, normatively primitive, values and interests, such as
fairness, reciprocity, well-being, harm, and the like. Hume accounts for promissory obligation by
explaining its role in providing valuable social coordination. Regan would be satisfied by an account of
promissory obligation that demonstrated why making and keeping promises reduced
human suffering.22
Pratt accounts for promissory obligation by explaining its role in
providing valuable assurance.23
And even Raz ultimately traces the normative power of promising to its
role in facilitating valuable relationships.
In this sense, all of these philosophers are deeply consequentialist
about the normative force of promissory morality.
The
personal sovereignty account, however, explains promissory morality not on the
consequentialist ground that it promotes some other moral value, but on the purely deontic ground that it derives from a fundamental moral value.24
In Regan’s terms, it claims that personal sovereignty, understood as
entailing the power to undertake self-imposed moral responsibility, is a
fundamental moral value which no more stands in need of justification than does
the claim that reducing human suffering is morally good. Does it explain, as Hume requires, how a
promise provides the promisor with a reason for action by explaining how
keeping the promise serves some human interest, without using the notion of
obligation? Here I am once again
inclined to follow Raz’s lead:
[T]o
the extent that promises are a source of voluntary obligations they are made by
the exercise of normative powers. The
obligatoriness of many promises can no doubt be explained on other grounds
which do not depend on the fact that promises yield voluntary
obligations. But such explanations,
correct and useful as they are, miss the essential point in the common
conception of promises.25
Furthermore,
Because
all types of voluntary obligations are characterized by being mandatory norms
with content-independent justification, they are justified by the justification
of the general norm that promises . . . ought to be respected;
they are not justified by giving reasons for the desirability of each
obligatory act in its particular circumstances.26
Personal
sovereignty itself provides, in Raz’s terms, “the justification of the general
norms that promises ought to be respected.”
The fundamental moral value of according individuals the maximum
permissible control over the moral norms that govern their lives explains why
individuals have the power to make promises and promises provide reasons for
action. According to the personal
sovereignty account, promisors should keep their promises not because of the
consequences of performing or failing to perform the promised act or following
or breaking a general norm of promising, but because morality treats personal
sovereignty as a fundamental value that requires promises to be kept. Simply put, promisors have reason to keep
their promises because morality requires that promises be kept.
* Visting Professor of Law, University of Michigan Law School; Robert E. Scott Distinguished Professor of Law, Professor of Philosophy, and Albert Clark Tate, Jr., Research Professor, University of Virginia School of Law. I thank Scott Hershovitz, Don Regan, and A. John Simmons for helpful comments and discussions.
1 Jody S. Kraus, The Correspondence
of Contract and Promise, 109 Colum. L. Rev. 1603 (2009).
2 Kraus, supra note 1, at 1609.
3 For the distinction between moral
obligations and duties, see id. at 1614 (“Moral
duties designate those responsibilities to which morality subjects individuals
solely by virtue of their status as moral agents alone, while moral obligations
designate those responsibilities to which morality subjects moral agents only
if they have voluntarily chosen to undertake them. Unlike moral duties, moral obligations are
self-imposed.”).
4 According to Raz,
[A promise] creates
a special bond, binding the promisor to be, in the matter of the promise,
partial to the promisee. It obliges the
promisor to regard the claim of the promisee as not just one of the many claims
that every person has for his respect and help but as having peremptory
force. Hence, [promissory obligation]
principles can only be justified if the creation of such special relationships
between people is held to be valuable. . . .
[Promissory obligation] principles [depend] on the intrinsic desirability of
forms of life in which people create or acknowledge special bonds between them
and certain other individuals.
Joseph
Raz, Promises and Obligations, in Law, Morality, and Society: Essays in
Honour of H.L.A. Hart 210, 227–28 (P.M.S. Hacker & J. Raz
eds., 1977) [hereinafter Raz, Promises and Obligations].
5 Michael Pratt, Promises,
Contracts and Voluntary Obligations, 26 Law & Phil. 531, 567 (2007). Similarly, Pratt writes that “[e]lsewhere Raz writes that ‘promises are binding because it is desirable to make
it possible for people to bind themselves and give rights to others if they so
wish.’ If by ‘binding’
Raz means ‘morally binding’ then, again, the objection is manifest: that it is desirable does not make it so.” Id. at 567
n.84 (citation omitted) (quoting Joseph Raz, Voluntary Obligations and
Normative Powers, 46 Proc. of the Aristotelian Soc’y (Supplementary
Volumes) 79, 101 (1972))
.
6 Donald H. Regan, Authority and
Value: Reflections on Raz’s Morality of
Freedom, 62 S. Cal. L. Rev. 995, 1036–37
(1989).
7 Id. at 1037.
8 Id. at 1037–38.
9 Donald H. Regan, Reasons,
Authority, and the Meaning of “Obey”: Further
Thoughts on Raz and Obedience to Law, 3 Can. J.L. & Jurisprudence 3, 27
(1990) [hereinafter Regan, The Meaning of "Obey"].
10 For example, Regan suggests “[t]hat an act is one of relieving suffering is an intrinsic reason for doing the act—the relief of suffering matters in itself.” Id. at 26.
Regan does allow that promising might provide an evidentiary, and
therefore defeasible,
reason for performing the promised act if it could be shown that
promise-keeping is on average conducive to promoting good consequences. But on this view, promises are only prima
facie binding. They do not bind when the
promisor reasonably believes that performance does not promote good
consequences. In such instances, rather
than providing a reason for action that is outweighed by other reasons, the
promise provides no reason for action at all.
11 David Owens, The Problem with
Promising 7 (Feb. 12, 2009) (unpublished working paper, on file with the Columbia Law Review), available at
http://ssrn.com/abstract=1342060.
12 Id. at 3.
13 Id.
14 I use the term “deontic”
here to describe any moral theory that does not reduce an action’s moral rightness or wrongness entirely to its
consequences. See e.g., Larry Alexander
& Michael Moore, Deontological Ethics, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2007), at
http://plato.stanford.edu/entries/ethics-deontological/ (on file with the Columbia Law Review) (“[D]eontological theories are best understood in
contrast to consequentialist ones. . . .
[D]eontologists of all stripes hold that some choices cannot be justified by
their effects—that no matter how morally good
their consequences, some choices are morally forbidden. . . . For deontologists, what makes a
choice right is its conformity with a moral norm.”).
15 Raz, Promises and Obligations,
supra note 4, at 228.
16 Id.
17 Id.
18 Joseph Raz, The Morality of
Freedom 173–74 (1986) [hereinafter Raz,
Morality of Freedom]. Similarly, Raz
argues:
[T]he
power to promise and the right to promise are distinct notions. But both stem from a common core, i.e. the
interest of persons to be able to forge normative bonds with others. That is why they coexist, and one has the
power to promise if and only if one has the right to do so.
Id. at
174.
19 Raz, Promises and Obligations,
supra note 4, at 228.
20 Raz, Morality of Freedom, supra
note 18, at 369.
21 Owens, supra note 11, at 7.
22 “That an act is one of relieving suffering is an intrinsic reason for doing the act—the relief of suffering matters in itself. That is what we believe about the relief of
suffering . . . .” Regan, The Meaning of “Obey,” supra note 9, at 26 (internal quotation marks omitted). However, Regan in fact offers no such account
and believes promises do not generate genuine moral obligations.
23 See Michael Pratt, Promises and
Perlocutions, in Scanlon and
Contractualism 93 (Matt Matravers ed., 2003).
24 Although the personal sovereignty
account of promissory morality is distinct from Kant’s, both derive promissory morality from a conception
of autonomy. Kant argues that “freedom would be depriving itself of the use of its
choice” were it not possible to acquire
rights over “external objects of [one's] choice.” See Immanuel Kant, The Metaphysics of Morals
68–69 (Mary Gregor trans., Cambridge
Univ. Press 1991) (1797). According to
Kant, “another’s choice”
is included in the category of “external objects of choice” and called “contract
right”.
Id. at 90–91. Kant does not appear to claim that autonomy
specially requires the freedom to bind
oneself according to one’s will. Instead, his claim is that it requires the
freedom to receive commitments from
others, and thus to have rights over their choices, analogous to our rights
over external goods (i.e., property rights), whose possibility is similarly
essential to full autonomy. Thus, Kant
argues that we deprive the will of its full scope if we confine it to “internal”
objects of choice (i.e., our own actions), excluding external objects of choice
(such as other things and other people).
Hence, for Kant, full freedom requires the possibility of property and
contracts.
25 Joseph Raz, Voluntary Obligations
and Normative Powers, 46 Proc. of the Aristotelian Soc’y (Supplementary Volumes) 79, 98 (1972).
26 Id.
Preferred
Citation: Jody S. Kraus, Personal Sovereignty and Normative Power
Skepticism, 109 Colum. L. Rev. Sidebar 126 (2009), http://www.columbialawreview.org/Sidebar/volume/109/126_Kraus.pdf