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.

Tuesday, April 19, 2011

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.†††

*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.
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.

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