Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Wednesday, April 20, 2011

Natural Law's Modern Cousin Germain: Promises and Obligations

A PROMISE IS NOT A MONOLITHIC CONCEPT. There is variability in promises, differences in dignity in promises, as it were. From resolutions, to promises, to contracts, to covenants between humans, to vows, to covenants between God and man. We understand that not all promises impose a strict obligation on the promisor, that there are changes in circumstances, either foreseen or unforeseen, that make promises highly impractical or even impossible of performance. There are implied release valves, as it were, implied clausulae rebus sic stantibus,* where the reasonable promisee would not expect performance on the part of the promisor, and thus would accept a simply apology or the making of amends or, in some cases, even the need for these weaker substitutes for performance. If I promise to buy milk on my way back from work, but I get delayed with a client and I cannot leave work until after the store is closed, my wife will probably understand that the commitment to stop by the store and pick up milk was not intentionally breached, was excused by the unforeseen change of circumstance, and an apology or may even mere explanation will suffice despite the broken promise. No moral fault will be ascribed to the failure to abide by the promise.

On the other hand, there are some promises that are more formal, which demand compliance even if great sacrifice is required, even if unforeseen circumstances intervene, and that which are rarely, if at all, allow for breach. The solemn monastic vow, or a priestly vow of celibacy, would be an example of such promise. The marital covenant which binds in sickness and in health, for richer or poorer, for better or worse, until death parts the spouses is another example.** (We ought to be thankful that God's promises are of the exceptionless kind else we could not pray with confidence the traditional Act of Hope: "O my God, relying on Thy promises, I hope that, through the infinite merits of Jesus Christ, Thou wilt grant me pardon of my sins, and the graces necessary to serve Thee in this life and to obtain eternal happiness in the next. Amen.")

Marcus Atilius Regulus Departing for Carthage

And between extremes of exceptionless promises and conditional promises there is room for debate, and so man reasonably argues about promises--their bindingness in general and in particular--like he seems to argue about everything else. This flexibility in promises is found in both moral (extra-legal) analysis of promises and, more formally (though less flexibly), in legal doctrines that soften the enforcement of promises with legal defenses to the enforcement of a contract such as the doctrines of impossibility, impracticability, duress, illegality, failure of consideration, unconscionability, and the like. And yet, despite the recognition that promises enjoy different dignities, there are stories of fidelity to promise that inspire us to do less arguing and parsing of words and to be heroic in the keeping of our promises, perhaps most noble of all in the pagan annals of such is the story of Marcus Atilius Regulus.*** God, a Christian need hardly be reminded, is more faithful that Regulus. "The Lord," says the Psalmist, "is faithful to all his promises." Psalm 145(144):13. Fidelis Dominus in omnibus verbis suis.

Regardless of the play-in-the-joints quality that reasonably inheres in promises, a "promise properly made is always an exclusionary reasons, that is, [it] always gives a reasons for disregarding some reasons, which are genuine and relevant and which in the absence of the promise to do φ would have sufficed to justify not doing φ." NLNR, 308. Nevertheless, the exclusionary reasons that is incorporated within a promise "can be defeated by some countervailing reasons, often by a wide range of readily available reasons (though never by any and all of the reasons that would in the absence of the promise, have warranted not doing the thing promised)." NLNR, 309. In other words, promises restrict freedom of action: they are a willing limitation on our future reasons for acting. They are also reasons in and of themselves for acting. Even if defeasible by reason or circumstance, by condition precedent or subsequent, the promise limits, it constrains, it obliges in some manner.

Finnis addresses the question of why promises bind, but specifically why they bind legally so that public authority can enforce them against the promisor. What is the justification for the legal enforcement of the promise? And from the enforcement of promises by law it is an easy step to the enforcement of laws by law.

Finnis finds the answer to the problem of why promises may legally bind and be enforceable by public authority to lie in the "correct identification of the law-abiding subject's practical reasoning, reasoning to which such a norm is directed and which such a norm is intended to direct in a distinctively 'obligatory' way." NLNR, 315. As in most of Finnis's analysis, justification for force is found by reference to the common good. He sees the "relevant schema of practical reasoning" justifying enforcement to follow a three-step process:
  1. In all coordination problems among individuals (whether these are to be done by public authority through law, or privately through compact, i.e., promises or contracts), one must act in a way that is legally specified if one is to respect the common good.
  2. Where a certain "pattern-of-action" is legally specified as resulting in obligation (and incurred either as a matter of law or a matter of individual compact), the "only way of satisfying the need postulated" in step 1 above is "to act according to the pattern so specified."
  3. So to act in a matter that respects the common good where a "pattern-of-action" is legally specified to result in obligation, one must or ought to act in the way that is specified as obligatory.
Finnis concedes that this sounds "empty and/or viciously circular." NLNR, 315. He simplifies the technical language to the following schema:
  1. We need for the sake of the common good to be law-abiding;
  2. But where φ is stipulated by law as obligatory [whether as a result of promise or as a result of law], the only way to be law-abiding is to do φ.
  3. Therefore, we need [it is obligatory for us] to do φ when φ has been legally stipulated to be obligatory.
NLNR, 316. According to Finnis, the "law thus anticipates and seeks to capitalize upon, indeed, to absorb and take over, the 'good citizen's' schema of practical reasoning, and to give it unquestioned or dogmatic status." The first step is a moral principle, the moral principle that ties in to the legal system and justifies our obligation to it. The moral principle assumes that "laws provided directly applicable and authoritative guidance for the reasonable man and eliminate the need for him to weigh up (as the legislature had to weigh up) the pros and cons of man possible courses of action." NLNR, 318.

And yet the interplay between the moral reason (which can bow out in the event something is contrary to the common good or practical reason) and the legal reason (which is invariant, and positivistic, even if it allows for legal exclusions) makes it clear:

The equal obligation in law of each obligation-imposing law is to be clearly distinguished from the moral obligation to obey each law. For, like the obligation of promises, the moral obligation to obey each law is variable in force. . . . [T]he reasons that justify the vast legal effort to render the law, unlike the informal social institution of promising, relatively impervious to discretionary assessments of competing values and conveniences are reasons also that justify us in asserting that the moral obligation to conform to legal obligations is relatively weighty. These reasons relate particularly to the extent, complexity, and depth of the social interdependences which the law, unlike promises between individuals, attempts to regulate. Such an ambitious attempt as the law's can only succeed in creating and maintaining order, and a fair order, inasmuch as individual drastically restrict the occasions on which they trade off their legal obligations against their individual convenience and conceptions of the social good. . . . The law provides the citizen, like the judge, with strongly exclusionary moral reasons for acting or abstaining from actions.

NLNR, 318.
*A clausula rebus sic stantibus (Latin = "things-thus-standing clause" or "things-being-the-same-as-now clause") is a clause in a treaty (implied or express) that the promises or covenants assume that the circumstances that warrant the treaty and justify the obligations thereunder shall remain the same, and their material change could change the obligations therein contained.
**Even these are, in some (rare and extraordinary) cases, able to be dispensed. A Pope may, for grave reasons, dispense from a solemn religious vow (e.g., celibacy), and, the Pope may dispense from the marital promise for
unconsummated marriages. See, e.g., John Paul II, Apostolic Constitution Pastor Bonus, II, art. 67; Code of Canon Law cc. 1142, 1698. Non-sacramental marriages can sometimes be dispensed with for reasons of faith (Pauline or Petrine privilege). There is an exceptionless promise: a valid sacramental and consummated marriage, however, can never be the subject of dispensation by any earthly power. Quod ergo Deus iunxit homo non separet. What God has joined, let no man separate. (Mark 10:9)
***Regulus was a Roman general and consul between 267 and 256 B.C. In the First Punic War, he defeated the Carthaginian fleet, invaded northern Africa, and defeated the Carthaginian army 256 B.C. He was then defeated and captured by the Carthaginians 255 B.C, where he remained prisoner for five years. Having promised to return in the event he was unsuccessful, he was sent as a peace envoy to Rome, he successfully persuaded the Senate to reject the Carthaginians' proposals. Then, in keeping with his promises to his sworn enemies the Carthaginians, he freely returned to Carthage and was tortured to death when he delivered the Roman response to their entreaty.

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