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.
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*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.

Natural Law's Modern Cousin Germain: Promises, Promises

WHAT IS IT THAT WE MEAN BY "OBLIGATION"? There is not a language in the world that does not include this notion, though the various connotations of the various words have subtle differences. But the term obligation comprehends those things that we have to do (though the "must" is not because we are extrinsically compelled to), or must do, that we which have a duty to do, that which is wrong not to do or which it is shameful not to do, that which we are morally or legally under an obligation to do. In Latin we have the notion of oportet facere, in French il faut faire, one's devoir, which in Greek is known as το δέον (to deon) (from which we get the work deontological). The notion of obligation moves us from external compulsion to internal, self-imposed compulsion. The concept of obligation includes the "demand of conscience, a claim upon one's commitment, decision, action," all sorts and manners of "rational necessity" or compulsion, requirements of practical reasonableness. NLNR, 297.

The word "obligation," at least in English, has connotations of "promise," and so we may talk sensibly of situations in which we ought to do something which we have no obligation (as a result of a prior promise) to do. And yet it is also used more broadly, so that we can also intelligibly talk about an obligation not to commit suicide. Has not a man, Finnis suggests, who is "irretrievably marooned alone on an island," and obligation to try to survive, and not to "drink himself . . . to death"? NLNR, 298.

The term obligation, however, is something more compulsory than something that is fitting or something that is supererogatory in nature, something that goes beyond the call of duty, and yet is no wise contrary to obligation. The term obligation has a sense that it is of precept, not something that is counseled.*

Man is a promising animal, ein Tier . . . das versprechen darf.** He is not only an animal that is under an obligation, but he is an animal that can obligate himself. A man binds himself by a promise,*** but how is it that, going beyond the perhaps conventional signs of promise, that this promise binds? How is it that after engaging in a promise there is a "new motive" for behavior, that one believes himself "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 promises . . . . [who] subjects himself to the penalty of never being trusted again in case of failure."† But going beyond both conventional sign and Humean self-interest (a "prudential ought"), what is it in the promise that makes the "promising-and-therefore-performing-or-accepting-the-justice-of reproaches-etc." something that benefits the common good outside our selfish regard?

The benefit to the common good of promise-making is quite apparent, and so its utilitarian justification is simple and forthright:

[A promise] provides an effective means of maintaining co-operation, once initiated, over the span of time necessary for the fulfilment of any human project . . . Like the law, it enables past, present, and predictable future to be related in a stable though developing order; enables this order to be effected in complex interpersonal patterns; and brings all this within reach of individual initiative and arrangement, thus enhancing individual autonomy in the very process of increasing individuals' obligations. . . . So if on is to be a person who favours and contributes to the common good, one must go along with the practice of promising. Similarly, and secondarily, if one is not to be a 'free-rider' who unfairly takes the benefits of beneficial social institutions but repudiates the burdens, then one must go along with the practice when one has promised, as much as when one has been promised.

NLNR, 303. Perhaps more basic than even this is that there is a tie-in to the natural law (what Finnis habitually refers to as the requirements of practical reasonableness), specifically the "Golden Rule," that "one doe as one would be done by," or "impartiality."

Promising is one way of incurring such responsibilities. For the making of the promises creates a new criterion of impartiality, relative to the persons concerned and the subject-matter of the promise. The promise constitutes a special frame of reference or vantage point, in relation to which the conduct of the parties can be assessed for its impartiality.

NLNR, 304. And so this ties into to justice, in particular, commutative justice. The person to whom something is promised is owed something that before that promise he was not owed. He is due something where before the promise such was not due. The recipient of the promise receives "a special locus standi," which translates to a moral (and often legal) "right to claim performance" as something owed to him. NLNR, 304. This sort of private extension of impartialities, of modifying the various flows of private transactions and relationships of justice, relate back to the common good. There is no victimless crime in the breach of promise: not only is the promisee harmed by the promisor's breach, but all society in some way suffers from the breach.††

The making and keeping of promises is therefore intimately tied to both private and common good:

[T]hat common good (including the good of the promisee or other ascertained beneficiary) can be realized with reasonable impartiality only if the individual performs on his promise; and this necessity is the obligation of his promise (both the general moralists' obligation, and the obligation owed to the promisee or beneficiary). 'I cannot be one who acts for the common good unless I go along with the practice by performing on this promise.' Secondarily, 'I cannot be one who is rationally impartial unless I take the burdens of the practice as well as the benefits, and perform on this promise . . . .' The conclusion, in each case, is: "Therefore, I must perform . . . '

NLNR, 307. It is this that gives the promisee (or third party beneficiary) the right to claim performance from the promisor, and which justifies the imposition of force or compulsion on the part of public authority to enforce the promise made.†††


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*The distinction between counsel and precept is fundamental. We might quote St. Ambrose in his work Concerning Widows (De Viduis), XII.73.

You will see the difference between precept and counsel, if you remember the case of him in the Gospel, to whom it is first commanded to do no murder, not to commit adultery, not to bear false witness; for that is a commandment which has a penalty for its transgression. But when he said that he had fulfilled all the commandments of the Law, there is given to him a counsel that he should sell all that he had and follow the Lord, for these things are not imposed as commands, but are offered as counsels. For there are two ways of commanding things, one by way of precept, the other by way of counsel. And so the Lord in one way says: "Thou shalt not kill," where He gives a commandment; in the other He says: "If thou wilt be perfect, sell all that thou hast." He is, then, not bound by a commandment to whom the choice is left.

En tibi distantia praecepti atque consilii, si illum recorderis, cui in Evangelio (Matt. xix.13 et seq.) ante preascribitur, ne homicidium faciat, ne adulterium admittat, nefalsum testimonium dicat; praeceptum etenim ibi est, ubi est poena peccati. At verose pracepta legis memorasset implesse, consilium eidem datur, ut vendat omnia, et sequatur Dominum; haec enim non praecepto imprantur, sed pro consiliodeferuntur. Duplex namque fora mandati est: una praceptiva, altera voluntaria. Undeet Dominus in alia dicit: cum Non occides, ubi precepit; in alia: Si vis perfectus esse, vende omnia tua. Ergo hic liber est praecepto, cui defertur arbitrium.

**We don't usually cite to Nietzsche, but in this case we do. See On the Genealogy of Morals, II.1:

To breed an animal with the right to make promises--is this not the paradoxical task that nature has set itself in the case of man?

Ein Tier heranzüchten, das versprechen darf – ist das nicht gerade jene paradoxeAufgabe selbst, welche sich die Natur in Hinsicht auf den Menschen gestellt hat?

***Finnis defines a promise as "the making of a sign, a sign which signifies the creation of an obligation, and which is knowingly made with the intention of being taken as creative of such obligation." NLNR, 299.
†Hume, A Treatise of Human Nature, III.ii.5 (quoted in NLNR, 301).
††A reality too often forgotten in the laws that permit divorce, which is nothing other than a breach of promise, and a promise which is to last, and is binding to the promissor, as long as the promisee is alive.
†††Finnis rejects the notion of promise as "'bonds' created by 'acts of will' . . . on the part of the promisor." NLNR, 307. While there is obviously a voluntaristic component to the making of the promise (a promise must be made with the promisor's free will), the act of will is not the fundamental component of the promise. The act of will for Finnis "has no special role in explaining the obligation of performance promised." Rather, the obligation is one founded upon reason, and not will.