PROMISING, ASSURANCE, AND EXPECTATION1

Gary Watson April, 2004

To make a promise is to make a normative difference.2 But how promising makes this

difference, and what kind of difference it makes, have long been disputed questions.

Some authors, for example, David Hume and John Rawls, have (in different ways)

insisted on the centrality of social practices. Others have appealed instead to obligations

that arise from our creating expectations in others, obligations that don’t depend

essentially on the existence of a social “institution” of promising. The dispute has

recently been reinvigorated by T.M. Scanlon, who makes a forceful case for the

superiority of the expectation view over the social-practice view.3 However, Scanlon’s

argument has been subject to serious critiques, by Niko Kolodny and R. Jay Wallace

(KW),4 and by Michael Pratt. While KW agree that the social-practice view is by itself

inadequate, they maintain, nonetheless, that a theory such as Scanlon’s must and should

appeal to social-practice obligations in order to escape a fatal circularity.

This paper is a commentary on this dispute. I stand with Scanlon and others5 in

holding that promissory transactions do not require a social practice in the technical sense

at issue (though this is not to deny that a complex social context has to obtain to make

1 In writing this paper, I have profited greatly from discussing much of this material in a graduate seminar at the University of California at Riverside. I am indebted to all of the seminar participants. 2 Whether that difference is necessarily a moral difference is a good question. I think there is something to be said in favor of the position that promissory obligations are not necessarily moral, but are obligations just the same. But I won’t have time to take up this question here. See Margaret Gilbert….., and John Searle….. 3 T.M. Scanlon, “Promises”, Ch. 7, What We Owe to Each Other, Harvard U. Press, 1998. See also, “Promises and Contracts”, in Scanlon, The Difficulty of Tolerance, Cambridge U. Press, 2003. Except when noted, all references in the text are to the former work. 4 Niko Kolodny and R. Jay Wallace, “Promises and Practices Revisited”, Philosophy and Public Affairs, Vol. 31, No. 2, Spring, 2003. All references to KW are to this essay. 5 See John Searle….; and Joseph Raz, “Voluntary Obligations and Normative Powers” (PASS, Vol. 46(72), 79-101). More precisely, Raz thinks that analysis of the concept of promising doesn’t require such a social practice. He reserves judgment on the question whether there are adequate reasons for regarding promises as morally valid in a society in which there is no such practice. (“Voluntary Obligations and Normative Powers”, 100. )Hereafter, all references to Raz will be to this essay.) For more on the relation between practices, promises and conventions, see Longer Note (v), below.

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promising intelligible). In the end, though, I agree with Joseph Raz and Michael Pratt6

against Scanlon that promissory obligations cannot be grounded in general principles

about the creation of expectations. At the same time, I think there is something

importantly right about Scanlon’s appeal to the value of assurance. The question is how

to incorporate that notion into a non-expectation account.

I Promises and normative powers

It is plausible to see promising as an exercise of what Raz calls a “normative

power”, understood as the power to create or rescind practical reasons by one’s will. To

promise (successfully) is to create a requirement that one carry out a course of conduct by

communicating one’s intention to undertake, by that very act of communication, an

obligation so to act. To have a normative power is thus to have a kind of authority. In the

case of promising, what is created, voluntarily, is an obligation of a certain kind and a

correlative claim. On this authority, one gives others a say-so that they would not have

possessed otherwise. (The promisee’s resulting authority might then be exercised by

releasing the promisor.) The reasons created are “content- independent”, in Raz s’ phrase,

in the sense that they depend not on the independent desirability of complying with the

reasons, but, like all reasons of authority, on how they came to be. The reason you have

to return the book, for example, is not (merely) that its owner needs it but that you

promised, that you committed yourself, in this way, to return it.7

It is easy to be puzzled by voluntary obligations. Hume found the apparent fact

that, in making a promise, a “new obligation arises from [one’s] will” to be “one of the

most mysterious and incomprehensible operations that can possibly be imagin’d”.8 He

even likened the practice of creating promissory obligations to the “priestly inventions”

6Pratt, “Promises and Perlocutions”, in Matt Matravers (ed.), Scanlon and Contractualism (London: Frank Cass Publishers, 2003). (Hereafter, all references to Pratt are to this essay.) John Searle also rejects both the social practice view and the expectation view. See Rationality in Action, 198. 7 Raz: “An act is the exercise of a normative-creative powe r if and only if it normatively affects the content or existence of a norm which is justified by content-independent arguments. An act is the exercise of a regulative power if and only if it normatively affects the application of a norm and there are content independent arguments for respecting the norm as affected by such acts”. 96 8 David Hume, A Treatise of Human Nature, Book III, Part II, section v, 2nd Edition (edited by L.A. Selby-Bigge and P. H. Nidditch), Oxford: Clarendon Press, 524.

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of transubstantiation, 9 with this difference, that the former “operation” is enormously

beneficial to human society. Indeed, that one is to perform one’s promises Hume takes to

be one of the three “fundamental laws of nature…on the strict observance of

[which]…the peace and security of human society entirely depend.”10

Obviously, to dispel this perplexity, to understand why the power to make promises

matters, one needs to examine the context in which voluntary obligations are incurred.

Raz suggests that the justification of a particular act as obligatory will in principle

proceed at two levels. In practice, that I am obligated to return the book is supported

simply by reference to my promissory act. Theoretically, we might want an account of

the validity of the norms conferring this power on us, norms that do not themselves arise

from the exercise of an agent’s normative power. The first level of justification presumes

the existence of a power to create obligations of this kind, a presumption for which some

normative account is needed. The social-practice view is a candidate for a second- level

theory of the type that Raz has in mind: it is a justification for recognizing the power to

establish moral reasons of a certain sort. In contrast, as we’ll see, the expectation view is

usually advanced as an alternative to the idea that promises are voluntary obligations in

Raz’s sense.

Now it might be denied that we need much of a theory here.11 Despite Hume’s

puzzlement, it is easy to sympathize with Judith Thomson. Promises are ways of giving

one’s word:

There is nothing deeper that either needs to be or can be said about how word-givings generally and promisings in particular generate claims. Their moral force lies in their generating claims; and the fact that they do generate claims is explained by the fact

9 Promising “may even be compar’ed to transubstantiation, or holy orders, where a certain form of words, along with a certain intention, changes entirely the nature of that external object, and even of a human creature” (524). (See Longer Note (i), below, for more on this sense of perplexity.) 10 526. This is of course the basis of Hume’s defense of the validity of the norm that promises are to be kept. But I’m not sure whether Hume thinks this constitutes a defense of the existence of the relevant powers, or whether (in contrast to the religious case) he thinks it’s only a defense of the immense utility of the fiction that such powers exist. 11 Not everyone will agree that a two level justification is possible or necessary. Cavell: “The appeal [to rules] is an attempt to explain why such an action as promising is binding upon us. But if you need an explanation for that, if there is a sense that something more than personal commitment is necessary, then the appeal to rules comes too late. For rules are themselves binding only subject to our commitment.” The Claim of Reason (Oxford), 307.

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that issuing an invitation is offering to bind oneself, so that when the invitation is accepted, the offer is accepted, and one therefore is bound.12

Promising binds simply because it is a giving of one’s word. In promising, I invite you to

rely upon my word, and by accepting you acquire certain claims against me. That’s what

offering and accepting are. There is a kind of illumination here, but we’re moving in a

small circle. Promising binds because it’s issuing an invitation and issuing an invitation is

offering to bind. It is not likely to help with Hume’s perplexity, since one who is puzzled

about how promises bind is likely to be puzzled about how those promissory acts of

invitation and offer bind. But one way it illuminates is by bringing out more clearly the

structure of promissory transactions. It will be useful for our discussion to say a bit about

this structure and its elements.

II The structure and content of Promissory Transactions

Distinguish between a promissory act and a promissory obligation. A successful

promissory act gives rise to a promissory obligation. When this occurs, we can say that a

complete promissory transaction has occurred.

A promissory act can occur without a promissory obligation if,13 to use

Thomson’s useful term, there is no (complete) “uptake”. Uptake requires both receiving

and accepting the promissory proposal. You might fail to receive the promise if you

didn’t hear me, for example, or didn’t understand what I said. Receiving a promise means

understanding the act as the type of communication it is, that is, as an undertaking of an

obligation of certain sort. But you can receive a promise without accepting what it

proposes. With Thomson and others,14 I shall assume that a successful promise, a

complete promissory transaction, requires acceptance. Without acceptance, there is no

deal. 15 (See Longer Note (ii), below.)

12 J.J. Thomson, The Realm of Rights, Ch. 12 (“Giving One’s Word”), Harvard U. Press, 1990, 303. All references to Thomson hereafter are to this work. 13 But perhaps not “only if. There may be normative constraints in addition to uptake. On this point, a lot depends on whether one thinks of promissory obligations as necessarily moral. See note…below. 14 See also Charles Fried, Contract and Promise. But this claim is not uncontroversial. See Downie and Atiyah….. 15 Raz neglects the acceptance condition when he writes, “It is…both a necessary and a sufficient condition of making a promise that the promisor behave in a way which is either intended or can reasonably be taken

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Making a promissory proposal makes a normative difference even prior to its

acceptance. In particular, to do so is already to give normative powers to the promisee.

As Thomson insightfully puts it, the promisor by his act alters “the world in such a way

that uptake [i.e., acceptance] by the promisee makes the promisee have a claim.

….[W]hat the promisor does is to give the promisee, not a claim, but a power-a power by

the exercise of which the promisee makes himself or herself have the claim” (302). (See

Longer Note (iii), below.)

III Social-Practice Accounts

I now turn to a consideration of the two rival ways of accounting for the creation and

moral force of promissory obligations mentioned before: SP views and E-views.

We can take Rawl’s version to be exemplary of social-practice accounts.16 Like many

before him, Rawls notes that, like the threat of sanctions by a Hobbesean sovereign, the

practice of promising helps to stabilize schemes of cooperation and interaction by

mitigating the problem of assurance. It does this by triggering the sense of justice (that is,

“the normally effective desire to carry out [one’s] bona fide obligations” -342). Of

course, this not something Hobbes wanted to invoke in a state of nature. The practice

secures assurance only in a setting in which it is assumed that people in general are

concerned to keep their obligations. So it is not assumed that somehow by promising

people who are only motivated by self-advantage acquire a further compelling reason for

cooperative relations. The meaning and force of the practice depend on a background of

mutual confidence that people are by and large concerned to comply with moral

requirements. Promising works by generating obligations that then engage this concern.

The basic elements of Rawls account of how this works are: 1. the existence of a

practice of promising with constitutive norms conferring rights, obligations, and to indicate the promisor’s intention to bind himself to perform an act and to give the promisee a right against the promisor” (100). Ignoring this requirement is harmless if one’s focus is on making a promised in the sense of performing a promissory act. (See Longer Note iii, for more on this narrower sense of making a promise.) However, Raz’s formulation doesn’t meet the reception condition of uptake, either. Even the narrower construal of ‘making a promise’ requires reception. I haven’t made a promise to marry you if you never receive the message because I have inadvertently attempted to record my intention in disappearing ink. 16Rawls, A Theory of Justice, 342-350. (Hereafter references to Rawls will be to this work.) [ Note contrast between Hume and Rawls]

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responsibilities. The primary constitutive rule is, “If one says the words ‘I promise to do

X’ in the appropriate circumstances, one is to do X, unless certain excusing conditions

obtain.” This is what Rawls calls the “rule of promising”. 2. The principle of fairness: “A

person is under an obligation to do his part as specified by the rules of an institution

whenever he has voluntarily accepted the benefits of the scheme or has taken advantage

of the opportunities it offers to advance his interests, provided that this institution is just

or fair…” (342).

“[T]he intuitive idea”, Rawls explains, “is that when a number of persons engage in a

mutually advantageous cooperative venture according to certain rules and thus

voluntarily restrict their liberty, those who have submitted to these restrictions have a

right to a similar acquiescence on the part of those who have benefited from their

submission. We are not to gain from the cooperative efforts of others without doing our

fair share.”(342-3) From this, together with the further premise that the practice of

promising is just (not unjust), Rawls derives the Principle of Fidelity: “Bona fide

promises are to be kept”. So “the obligation to keep a promise is a consequence of the

principle of fairness.”

I take it that all social practice accounts will have a structure such as this, though

different versions will appeal to principles other than that of fairness. We can see the

theory as an example of a second- level account of the normative power to make promises

of the kind Raz envisioned (though didn’t endorse). The practice, in virtue of its moral

characteristics, gives us the authority to bind ourselves in this way. 17

IV Alleged Problems with the Social Practice View

Social-practice views, of any form, are subject to two objections, both of them pressed by

Scanlon. First, they are not necessary, for promissory transactions can take place in the

absence of any ongoing general practice of this kind. Second, they are not sufficient, for

17 I take it that Rawls would see this account as a response to Hume’s problem. Recall the puzzlement: How can merely establishing a particular convention or practice of uttering certain words itself generate mo ral (or any other normative) requirements? The answer is that it can’t. The rules constitutive of the practice can’t do that on their own. It is only if the practice is just, and by appealing to the principle of fairness, that we can generate new obligations. So the moral force of the commitment under the practice comes from the higher-level account.

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even if they generate obligations of a kind, they cannot explain the distinctive

interpersonal claims of promising (and corresponding wrongs of promise-breaking).

The second objection is put by Scanlon in this way: “Unlike the obligation to comply

with a just institution that provides some of the public goods, the obligation to keep a

promise is owed to a specific individual who may or may not have contributed to the

practice of promising” (316). When I make a promise, I do not merely incur an obligation

to those who have “contributed to and benefited” from this practice to do my fair share. If

I break a promise, the promisee has a special complaint that goes beyond the accusation

that I have exploited or taken advantage of a just institution. I have wronged the promisee

in particular by failing to answer her legitimate expectations.

I think this objection needs more scrutiny. (See Longer Note (iv)) But the theory is

clearly defective if it implies that what is wrong with my breaking a promise is primarily

that I’m free riding. The second issue is whether the normative power to undertake and

complete promissory transactions is conferred by or somehow depends on a social

practice in the sense at issue. And I can’t see that it does. What is necessary and sufficient

for a promissory transaction is that certain communicative acts transpire. I don’t see any

reason to think that a social practice is normatively or conceptually necessary for this.

Part of what creates the felt need for a social practice is the sense that the occurrence of

the promissory acts must depend upon rather thick social understandings. And that must

be right. But those understandings needn’t require a practice in Rawls’ technical sense.

(See Longer Note (v).)

V Scanlon’s Expectation view and Principle F

According to Scanlon, promissory obligations are instances of what we owe to others in

virtue of leading them to form certain expectations. They belong to a category that I’ll

call “E-obligations”. These are obligations either to avoid creating expectations in certain

circumstances, or to do certain things in response to having created them. Thus the wrong

of a false or broken promise is not on this view to be explained in any essential way by

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the existence of a social practice. The practice, where it exists, would be merely one

means by which we might create the expectations in question. 18

One of the main challenges for an expectation view is to account for a feature of

promissory obligations that distinguishes them from other E- obligations. When you

promise, you are committed to performing what is promised unless released by the

promisee. Not all E-obligations are performance obligations of this kind. Contrast

asserting that I’ll be at the party with promising that I will be. When by my assertion I

know that I have created expectations regarding my future whereabouts that matter to

you, I might be morally committed to warning you if I change my mind. Or perhaps even

to compensating you if you suffer some loss because you rely on me. Or if nothing else, I

owe you an explanation. But in the case of a promise, my commitment is different. I am

not free to change my mind unless you consent to my doing so. That’s the point of the

promise. I cannot discha rge my obligation simply by informing you in a timely way that

I’ve made other plans.

Scanlon tries to capture this feature of promissory obligation in his principle of

fidelity:

Principle F:

If (1) in the absence of objectionable constraint, and with adequate understanding (or the ability to acquire such understanding) of his or her situation, A intentionally leads B to expect that A will do X unless B consents to A’s not doing so; (2) A knows that B wants to be assured of this; (3) A acts with the aim of providing this assurance, and has good reason to believe that he or she has done so; (4) B knows that A has the beliefs and intentions just described; (5) A intends for B to know this, and knows that B does know it; and (6) B knows that A has this knowledge and intent; then, in the absence of special justification, A must do X unless B consents to X’s not being done.19

Whereas Rawl’s view derives the principle of fidelity from the principle of fairness,

Scanlon grounds Principle F in what he calls the “value of assurance”, the reasons we

have for wanting reliable assurance about what others will do. Principle F is a valid moral

18 Compare Searle: “To think that the obligation of promising derives from the institution of promising is as mistaken as to think that the obligations I undertake when I speak English must derive from the institution of English…..’ Rationality in Action, 199. (See Longer Note (v).) 19 I give here Scanlon’s most recent formulation of Principle F in “Promises and Contracts”, in Scanlon, The Difficulty of Tolerance (Cambridge University Press, 2003), p. 245. It differs only slightly (in the first clause) from earlier formulations.

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principle on contractualist grounds because the value of assurance gives everyone a

strong reason to accept (or not to reject) a principle that requires people who meet these

conditions to perform as indicated, not just to warn or to compensate. When this principle

applies, a right is conferred on one party to insist on performance.

F is the strongest of a number of plausible E- principles that Scanlon considers.

For example, Scanlon takes the following principles to be justified on contractualist

grounds:

Principle of Unjustified Manipulation (M): In the absence of special justification, it is not permissible for one person, A, in order to get another person, B, to do some act, X (which A wants B to do and which B is morally free to do or not do but would otherwise not do), to lead B to expect that if he or she does X then A will do Y (which B wants but believes that A will otherwise not do), when in fact A has no intention of doing Y if B does X, and A can reasonably foresee that B will suffer significant loss if he or she does X and A does not reciprocate by doing Y. The Principle of Due Care (D): One must exercise due care not to lead others to form reasonable but false expectations about what one will do when one has good reason to believe that they would suffer significant loss as a result of relying on these expectations (300). The Principle of Loss Prevention (L): If one has intentionally or negligently led someone to expect that one is going to follow a certain course of action, X, and one has good reason to believe that that person will suffer significant loss as a result of this expectation if one does not follow X, then one must take reasonable steps to prevent that loss.

These are weaker in that they do not give rise to obligations of Fidelity, with the specific

performance obligations we just described.

It is important to Scanlon’s project that not all obligations incurred under F (F-

obligations) are incurred by promising. This point is the basis for his claim that the

normative source of promissory obligations does not depend essentially on specifically

promissory acts. “[T]he conditions of expectation and knowledge that Principle F

specifies can be fulfilled in many ways other than by making a promise.” (306) (This is a

point that distinguishes the expectation view from a normative-power view, whether or

not that is combined with a social practice account. I will return to this point later.) What

distinguishes promising from other F-obligations is the type of reason for assurance that

it provides (and hence the way in which it satisfies condition (1) of F.) In saying “I

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promise to x”, or in performing this promissory act in some other way, I express my

intention to x, and at the same time communicate my awareness that, having expressed

my intention in the circumstances, it would be wrong of me to not to perform without

your consent.

VI The circularity problem

But here a problem of circularity looms large. On the expectation view, the wrong of

promise breaking is explained by the fact that promising gives rise to expectations. But

those expectations are explained in turn by the promisor’s communication of his

awareness that it would be wrong not to act as promised. Thus promissory obligations

depend on my having created these expectations; these expectations derive from the

other’s belief that I will have these obligations if I create these expectations. It looks as

though, as Scanlon puts it, we can’t get started.

Scanlon’s Solution

Note that this problem doesn’t arise in the case of other E-obligations or indeed of non-

promissory F- obligations (if there are any). For expectations that trigger those

obligations are not based upon attributing moral reasons to the person incurring the

obligation. The solution therefore depends on basing the expectations in reasons, first,

that the promisor is expected to have independently of the wrongness of promise

breaking (or of violating Principle F); but, second, that are nonetheless moral reasons,

since Scanlon thinks the assurance given in promising must be, in this sense, moral

assurance.

Scanlon’s solution is to appeal to the weaker E-principles, M and D, to ground the

expectation. To promise to x is to express two things: a) that I intend to x, and b) that I

am one who takes my moral obligations seriously. (306-9) By b), I give you reason to

think that I would not express my intention in violation of M or D. This is a basis for your

expectation, which, in circumstances in which the other two conditions of principle F are

satisfied, generates an F-obligation. This solution satisfies the two constraints we

mentioned: it roots the assurance in a moral reason (since M and D are moral principles)

that is independent of principle F.

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If this solution works, Scanlon has succeeded in producing an account of the

wrong of promise-breaking that differs from both the social-practice view and normative-

power views. The words “I promise” create the obligation by creating the expectation. By

implication, the very same obligation can be created in other ways. So the wrong is not a

unique wrong of breaking a promise; it is the wrong of failing to live up to expectations

that one has intentionally created, a wrong that needn’t be mediated by on-going general

practices. Equally importantly, in contrast to normative-power accounts, there is no use

here for a distinctive intention to incur an obligation. All that is necessary is an

(expression of an) intention to perform, and the communication of one’s sense of the

moral seriousness of non- performance in view of this intention.

KW’s Criticism of Scanlon’s Solution

Scanlon’s solution has been subject to forceful criticism by Kolodny and Wallace and by

Michael Pratt. Although KW reject Scanlon’s solution, they think that the Principle of

Fidelity can and should be salvaged. They attempt to do so by bringing social practices

back into the account. After assessing their own proposal, I’ll take up a line of argument

pursued by Pratt, an argument which casts deeper doubt on Principle F itself.

As we’ve seen, the solution to the circularity problem must appeal to some

reasons for the promisee to believe that the promisor will do x without appealing to F

itself and without appealing to prior non-moral independent reasons for x’ing. Scanlon’s

use of M and D seems to meet these conditions, but KW show that this appearance is

deceptive. For attributing a commitment to D to the promisor will not give rise to the

requisite expectation that he or she will x, they argue, unless the promisee believes that

the promisor has independent reasons to do x, on the basis of which he or she intends,

and can be expected to continue to intend, to x. This way out of the circle thus fails to

apply precisely where promising is thought to have its special authority: to provide

assurance without any other basis (besides the assuring itself) to expect the promisor to

perform.

VII The Hybrid View as a Solution to the Circularity Problem

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I will take up the implications for F of this criticism in a moment. First let’s look at KW’s

proposed way out.

The hybrid view

KW solution to the circularity problem is ingenious. The idea is to account for promising

as a “hybrid” of practice-based obligations and F-obligations. Here’s the proposal. When

one promises, one incurs an obligation to perform in the way that the social practice view

suggests. The practice-based obligation is the basis for a moral assurance that the

promisor will perform because doing so is now required by the principles of a fair

practice. This assurance then “triggers” the duty of fidelity by giving rise to expectations

of performance. This avoids the problem of circularity because it provides a moral reason

to x that is not dependent on the promisee’s expectations. Unlike the moral reason that

Scanlon invokes in his solution, the practice-based obligation doesn’t require an

assumption of an independent non-moral reason for doing what is promised. Incurring

this practice-based obligation may then provide assurance to the promisee, thereby

satisfying the conditions of F. The appeal to something like F is still necessary because

only it explains how promising creates an obligation the violation of which is a

distinctive wrong to the promisee. (Recall that the failure to do this was one of the chief

objections to the SP view.) Hence, in promise breaking, there are two wrongs, both made

possible by the promise: one is the wrong of “exploiting or undermining” the social

practice; the other is the wrong of violating F. (148-50)

KW regard the hybrid view as not just an ad hoc wedding of two disparate moral

notions, but as bringing together features promissory transactions that we independently

recognize in practice. We might not find it natural, initially, to speak of two obligations

incurred by promising, or two corresponding wrongs committed by breaking a promise,

but we do in fact make two separate complaints against promise-breaking: apart from the

evident wrong done to the promisee, we also think, “What if everyone did that?”, a

thought that shows the force of the SP view.

Problems with The Hybrid view

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Despite its ingenuity, the hybrid account seems to me unsatisfactory. For once social-

practice obligations are incorporated into our understanding of promissory obligations,

one of the main rationales for F as an E-principle is lost. Recall that none of the other E-

principles, in particular L, yield duties specifically to perform, rather than just to warn, or

perform, or compensate. But on the hybrid account F is no longer needed for this

purpose, since the specific performance duty is implied by the constitutive principle of

the social practice. Furthermore, F is not needed to compensate for the SP view’s failure

to explain why the promisee, specifically, is mistreated when a promise is broken, for

violations of the weaker E-principles do that. Consequently, anything that is done by

KW’s hybrid view is also accomplished by conjoining the social-practice obligation with

the other (non-F) E-principles. The resulting weaker hybrid view captures the two

features of promissory obligations: a specific commitment to perform unless released by

the promisee, and the specific wrong to the promisee that is distinct from failure to do

one’s part in a fair practice.

In sum, while a hybrid account can help avoid the circularity problem of F, once

you help yourself to the SP view, there is no real work for principle F to do.20 The content

and force of promissory obligations seem fully explicable without it. An implication of

this point is that the original motivation for the hybrid view – to solve the circularity

problem - disappears. For among E-principles, the circularity problem is a problem that

only affects F.

Now insofar as KW are right to say that promises involve both practice-based

obligations and E-obligations, then some version of a mixed account might still be

appealing. But no hybrid account can be responsive to the first objection to social-

practice views: that promissory transactions don’t seem to require an actual social

practice of the relevant kind. If that objection is correct, as I think, hybrid views will not

be able to capture all actual cases of promising. In the absence of a practice, circularity

20 It might be thought that F is still needed to provide for non-promissory F-obligations; indeed, both Scanlon and KW cite candidates for these. But I’m not convinced. I don’t have time to try to show this here, but I would argue that the examples are either examples of promises, or of some weaker E-obligation. Here I have been influenced by an unpublished manuscript by Neal Tognazzini.

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problems will prevent F from engendering obligations. And in the absence of a practice,

weaker forms of E-principles will not give rise to distinctly promissory obligations.21

VIII Principle F reconsidered

In my view, reflection on the circularity problem points to fatal problems with F itself as

an E-principle. Specifically, what is suspect is the presence in F (1) of the clause, “unless

B consents to A’s not doing x”. Without this clause, of course, F’s consequent, “then, in

the absence of special justification, A must do X unless B consents to X’s not being

done”, would be gratuitous. But the presence of the clause is the source of the troubles we

have been reviewing. For what is it about A’s expression of intention that entitles B to

think that A’s continued adherence to that intention depends on B’s consent? It can’t be

B’s belief regarding A’s commitment to M or D. A’s having M-reasons or D-reasons is a

ground for believing that A’s intentions are sincere, and this gives some reason for

thinking that A will do it (though perhaps not, as KW successfully argue, the right kind of

reason). But it provides no good reason to think that A will perform unless B consents to

his not doing so. Now if, in virtue of clause 2, the frustration of B’s expectation meant

that B would “suffer significant loss”, then A would have L-reasons, but these reasons

would fall short of reasons to perform unless B consented to his not performing. So it is

hard to see how any of these moral reasons could ground B’s entitlement to expect that A

(however conscientious he is assumed to be) will perform rather than warn or

compensate.

Let me try to put the problem in a slightly different way. (This line of argument is

derived from Michael Pratt.) F is supposed to explain how you can acquire an entitlement

to expect that I will perform unless I consent to your not doing so. As an E-principle, it is

supposed to explain this by appealing to the fact that my communication of my intentions

creates expectations on your part. Now how does my saying “I intend to X” do this? If

what creates the expectation is my saying something to the effect that I will do x unless

you consent to my not doing so, then we have a problem of circularity. For it looks as

though what explains your expectation that I will perform is my communication of my 21One virtue of hybrid accounts , however, is that they can explain how a promissory act can incur a kind of obligation (via social practices) even when it fails to create an E-obligation (because the putative promisee is not assured).

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intention to undertake an F-obligation. To avoid this problem of circularity, the

expectation must initially arise from an expression of intention without the unless-clause.

But suppose that the communication of this more minimal intention is conjoined with the

rider that I reserve the right to change my mind on this matter.22 I might say, “As a

completely sincere, non-negligent, and otherwise morally conscientious agent, I tell you

that I firmly intend to x, but I also reserve the right to change my mind.” This rider

doesn’t affect your legitimate expectations regarding my performance by affecting your

beliefs about its likelihood, for my reservation needn’t bear on the probabilities of my

performance; rather it blocks your right to my performance by expressly denying any F-

obligations to perform as intended. My reservation makes it explicit that I have not

performed a promissory act. This appears to show that my act of communication warrants

F-expectations only when and because it is understood in the first place as my giving up

the right to change my mind by entitling you to hold me to my performance, that is, only

if it is understood as an exercise of normative power.

The communication of a more minimal intention, together with the fact that I take

my moral obligations seriously, might suffice, via M and D and L, to underwrite the

expectation that I will do x unless I warn or compensate you for any loss you might have

incurred because of your reliance on me. But that falls short of an F-obligation. I

conclude that any non-circular account of the expectation that is generated via M or L or

D will be insufficient to generate an F-obligation. That is bad news for an expectation

account of promissory obligations.

IX Conclusion: Normative powers and the value of assurance [unfinished]

I have considered four views of promising.

1.Normative-Power view: Promising is the exercise of the power to effect a

normative requirement that one carry out a course of conduct by communicating

one’s intention to undertake, by that very act of communication, an obligation so

to act. This view may or may not appeal to a social practice.

22 See Pratt, 107-09. For my understanding of Pratt’s argument, I have been helped by discussions with Neal Tognazzini.

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2. Social-Practice view: promissory obligations are derived from the duty to

comply with the requirements of a fair and beneficial social practice.

3. Expectation view: promissory obligations are a (sub)species of obligations that

arise from our giving rise in others to expectations about our future conduct.

4. Hybrid view: promissory obligations arise from an interaction of social-practice

obligations with E-obligations.

Social-practice views are not necessarily alternatives to normative power accounts,

because they are probably best seen as attempts to account for the possession of these

powers. In contrast, I see expectation views as rivals to both of the other accounts.

I have tried to give reasons for preferring a normative-power view. Scanlon is

struck by the similarities between promissory obligations and obligations arising in virtue

of creating expectations. In contrast, I am struck by similarities between promises and

gifts (givings), exchanges, offers/acceptances, permittings (allowings) and other

exemplifications of normative power (roughly, the class of agreements, or of

interpersonal voluntary obligations). The rights conferred by a promise are in important

ways like the rights conferred by a gift, which have do not arise from the creation of

expectations. The wrong incurred in breaking a promise is the same as the wrong

involved in my refusing to relinquish claims to an item I have given you.

Yet one of the main appeals of the expectation view is that it seemed to provide

an account of the normative force of promissory acts. The apparent connection with

expectations seemed to show how obligations can be created by your words. If we reject

this view, and also eschew a social-practice account, what can we say about this

question?

Here I would argue, again following Pratt, that a normative-power view can draw

on the value of assurance as well, and indeed this appeal can be part of a Scanlonian

contractualist framework. Thus contractualism is an alternative second-level account of

the normative power to undertake promissory obligations. The value of assurance

explains what’s at stake in promising, or rather in recognizing the complex of normative

powers that are at play in promissory transactions. This enables us to achieve an

understanding of why this is a kind of transaction that matters to people.

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Longer Notes

(i) Hume would agree, I think, with the claim of Prichard, Searle and others [references]

that promises, by definition, create obligations. [Compare Searle: “The free exercise of

the will can bind the will, and that is a logical point….”] But that doesn’t settle the

question of whether promises are possible. Hume’s puzzles are partly due to the

particulars of his moral theory. It is hard to see how normative relations could be merely

a product of the will if moral judgment is to engage or express sentiment in the right kind

of way. It is hard to see how a voluntary undertaking could itself have that kind of

significance. (See Anscombe’s discussion of Hume on this point.) But there is room for

puzzlement here even apart from meta-ethical commitments. How can one just, at will,

create a reason for oneself or another to act or respond in a certain way? It is as though

promising were like this: “I hereby give myself a reason to go to Baltimore” or “I hereby

give you a reason to rely on my going to Baltimore”. (The former device, if it’s possible,

could be a means of doing the latter.) How could promising succeed in creating

obligations in the way it is supposed to do unless these sorts of reason creation were

possible? This lies near Hume’s perplexity about promising. The function of promising is

to create a reason, indeed, a moral obligation, for me to do something I might have no

independent reason to do. How then can it be different from the bogus performance, “I

hereby give myself an obligation to do x?” Ritualized practices of insult have sometimes

seemed to me puzzling in this way. How can I insult you by an obscene gesture? Or by a

remark about your mother when it is understood by everyone, including me, that I don’t

believe what I say to be true (I may be completely unacquainted with your mother)? The

particular content of the gesture or the remark seems irrelevant. They seem just to mean: I

hereby insult you. This can’t make any sense, really, unless there is an independent

reason for me to take offense. It would be as though one said: I hereby give you reason

for offense. We might think that people who took this sort of thing seriously (as many of

us do) were suffering from a kind of normative illusion. But of course these rituals trade

on the internal relation between disrespect and offense. What’s going on here is that

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these rituals are conventional ways of signifying contempt or disrespect. If they are

sincere, that is, if they do express contempt, then they are grounds for offense.

(ii) As Margaret Gilbert has it, “Such acceptance [as is involved in promissory

transactions] amounts to more than a simple acknowledgement that the ‘promisor’ has

promised. It helps to constitute the promise as a promise.” "Obligation and Joint

Commitment", Sociality and Responsibility, 61. The acceptance of the promise is an

acceptance of a norm, and therefore of an expectation in the normative sense. Gilbert

tentatively suggests that when the power invested in the promisee is exercised, the

resulting relationship amounts to a kind of “partnership”(Gilbert, Social Facts, 333-4), a

joint commitment of the parties to the proposal that the promisee will perform as

promised unless released by the promisee.. So the promisee has commitments too, if only

the commitment not to thwart the promisor in the performance of his obligation. For

instance, Gilbert says, if I accept your offer to fix my computer on Tuesday evening, I am

committed to making myself or my computer available around that time.

But this illustration doesn't generalize, for there are many cases in which keeping the

promise doesn't require any cooperation on the part of the promisee. Suppose A promises

B to be faithful to him. (I am indebted to Amy Macarthur for this objection and to Paulina

Turetskaya for the reply suggested in the rest of the paragraph.) What does accepting that

promise commit B to? It is hard to see how B could thwart the promise, unless we

imagine him hiring others to seduce A. But this suggests a plausible way of seeing how

Gilbert's suggestion illuminates a feature of all completed promissory transactions.

Acceptance is a commitment to trust, and this makes a difference in how one thinks and

behaves. What difference it makes, and what it entails, will depend on the case, but it

always makes some difference. For example, if I assume in thought or action that you

have been unfaithful, I am violating my commitment, say by making a lot of inquiries.

Consider another example. Suppose your teenager has taken the family car out at night

w/o permission. She promises she won't do it again. Suppose you indicate that you accept

the promise. (Notice the role of this sort of understanding in forgiveness.) But you take

great pains to hide the keys, or find yourself keeping watch at night. Either you haven't

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really accepted her promise, or you have violated the commitment that such acceptance

entails.

(iii) When we speak of making a promise we sometimes have in mind the promissory act

itself, without the acceptance condition, and sometimes the complete promissory

transaction. ‘Making a promise’ is ambiguous between making a promissory proposal

and making a promissory obligation. To make a promise in either of these senses is to

make a normative difference, as we have seen. There must be a sense in which you have

promised prior to acceptance, because what I accept or refuse to accept is your promise.

(This is brought out nicely by Thomson’s gloss on promising as word giving. An offer or

invitation has been made.) So “S promised” can be ambiguous between S performed a

promissory act (offered his word) or S completed a promissory transaction in the sense of

successfully undertaking a promissory obligation. However, I would also require that the

other condition of uptake be satisfied if there is to be a promissory act at all. Otherwise it

is a merely intended promissory act. (But nothing I say in the text depends on this more

or less terminological point.)

(iv)This question requires further consideration. After all, if there is such a practice then

it works by voluntarily invoking a rule that confers upon the promisee precisely an

entitlement of the kind we have been considering. In what sense does it fail to explain the

distinctive wrong to the promisee? Compare marriage. Two individuals incur obligations

to one another by invoking a social or religious or legal practice. The fact that this

obligation is enabled by a practice of this kind doesn’t prevent us from saying that if

Adam violates his marital obligations to Steve, Steve has been betrayed and has a

complaint. It would be incredible to say that the primary wrong was to the institution of

marriage, Steve’s claims being only morally derivative. [Compare a will.] Steve’s claims

are derivative from the practice insofar as the institution enabled them to come into

existence, but they are morally independent of any claims the members of the society

might have against one another not to misuse or abuse this practice. To put it another

way, does the derivation of the principle of fidelity from the principle of fairness mean

that all violations of duties of fidelity are merely violations of duties of fairness?

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(v) Both Scanlon and Raz acknowledge that “social convention” plays a role in

determining what acts are reasonably taken to express the requisite intention. (See

Scanlon, 309-11.) Raz notes that in our culture, one can communicate the intention to

undertake an obligation of a promissory sort in certain circumstances [say where it is

understood that the other wants assurance about this] by saying “I will do it”. According

to these conventions, we can still cancel our promissory obligations (make it clear that we

are not promising in saying these words) by adding, “This is not promise”, or “words to

that effect”100. Raz’s point suggests that there wouldn’t be promising in a full- fledged

sense without a shared device (convention) to disambiguate bare expressions of the

intentions to x from expressions of intentions to x that are meant to be promissory

undertakings. This, of course, is just the disambiguating role that the words “I promise”

play so economically. It is a plausible hypothesis, then, that without the words “I

promise” or something equivalent, we would not be able to understand a group of people

(including ourselves) as engaging, unambiguously, in promissory transactions. Promising

clearly emerges as a distinctive human activity only once such a conventional device is in

play. There must be room for a way of answering the question, “Is that a promise?” and a

way for a person to signal that he firmly intends without committing himself to the

promissory undertaking.

There is this much truth to Prichard’s otherwise problematic claim: “One thing is

obvious. Promising requires the actual use of the word ‘promise’ or else of some

equivalent, such as ‘undertake’, ‘agree’, ‘give you my word’, or ‘will’, in ‘I will’.” (H.L.

Prichard, “The Obligation to Keep a Promise”, in Moral Obligation ., 169-179 (Oxford: 1949), 172.)

Taken as a requirement for individual acts of promising, this is clearly false. But taken as

a remark about the need for the currency of a convention for a special form of speech,

Prichard seems correct.