The Ethics of Deference Part 7 potx

The Puzzle of Promise 109

result is the same failure to correspond to our normal concept of law that we

explored in the previous chapter. In this case, it is easy to see what a nonmoral

sense of legal obligation might mean because there is an enforcement apparatus

that conveys the sense of being obliged. In the case of promise, the absence of

such an apparatus makes it harder to see what could be meant by a nonmoral

promissory obligation. By analogy to the legal case, however, an explanation can

be constructed. If Jane promises Henry to remove the ice and gives him a deposit

as security (which Henry may demand, particularly because he knows she thinks

it is wrong to make this promise and thus she is more likely to change her

mind), the analogy with the ordinance is maintained. Henry now has the power

to enforce the promise, even though he may have no moral right to do so and

even though it was wrong for Jane to make this promise in the first place. Thus

we have an example of a promise that may be said to be nonmorally binding.7

promises that subsequently become unjust. I said earlier that ques￾tions about the duty to obey the law are typically raised when the law’s prescrip￾tions deviate from what one believes correct action requires. This deviation may

seem less likely to arise in the case of promisors for the same reason it is less

likely to occur in the case of our hypothetical snow-removal ordinance: The act

promised presumably already reflects the promisor’s views about what consti￾tutes correct action. But of course, one can be wrong and change one’s mind

about the morality of the promised act. Or new facts can make a promised act that

was originally morally neutral now morally suspect: The classic example is the

promise to return a weapon to someone who, the promisor now thinks, plans to

use it to commit suicide in a temporary state of depression. But these possibil￾ities for discovering a mistake can also occur in the case of the snow-removal

ordinance. After voting for the ordinance, Jane may come to believe that the

ordinance is seriously mistaken or unprincipled. She believes, for example, as

we imagined before, that snow removal unjustifiably harms the environment or,

perhaps, that the government has no business interfering with private landown￾ers’ decisions about what to do about the snow. In like manner, after promising

Henry in the fall to remove the snow, Jane may have a similar conversion and

now believe that snow removal is a grave mistake. In both cases, she faces

the question of whether she has an obligation to obey the law or to keep her

promise.

These reflections show that promises and laws can both lead to similar prob￾lems of explaining how it can be right to take an action that would otherwise

7 For an alternative account of promissory obligation as a nonmoral obligation, see R. Sartorius,

Individual Conduct and Social Norms(Encino, Calif.: Dickenson, 1975), ch. 5. Sartorius’s expla￾nation, which applies to all promises, not just those thought to be immoral from the start, uses the

nonmoral sense of obligation to explain how an act-utilitarian can acknowledge obligations based

on past actions (the promise), consistent with a theory that considers only future consequences

in deciding what one ought to do.

110 part ii: the ethics of deference

be wrong apart from the law or the promise. In both cases, the conflict comes

about despite an initial belief that the action is correct; indeed, there would be

little need to worry about promissory obligation if promisors never changed

their minds. So the fact that most citizens don’t have the chance to determine

the content of laws they think unjust does not essentially distinguish them from

promisors who have changed their minds about the wisdom of their promised

acts. It should not surprise us, then, that the arguments one encounters in at￾tempting to justify promissory obligation will turn out to resemble arguments

about how to justify law’s authority. We shall compare the structure of these

arguments after first considering a second respect in which voluntariness might

be thought to distinguish promises from laws.

entering voluntarily into the promissory state. So far, we have

been considering voluntariness as if its relevance lies mainly in the choice it

gives the promisor over the content of the promised act. But those who think

that the obligation to keep a promise is on sounder theoretical ground than the

obligation to obey the law usually insist that voluntariness is critical for another

reason: It is not simply that one has control over content; one also has control

over whether to get into the situation in the first place. Law doesn’t give many

people direct control over content, but neither does it give them control over

which government they shall have or whether they shall live in any state. That

difference, it might be thought, is what the consent tradition in political theory

was all about, and that is why promise seems to start off in a better position

than law.

This intuition about the difference that voluntary entry into the situation

makes is important and, in one sense, is an intuition that also underlies the

argument of this chapter. But it is a difference not in the general theory that

explains the obligations of promise or law, but only in the factors that justify

applying the general theory to each case. The voluntary decision to make the

promise in the first place helps explain why the promisee now has a right

to deference in a way he or she otherwise would not have. In the case of

law, the justification for deferring to the state depends on recognizing that the

state is necessary: Except for anarchists, political theorists mostly agree that

the enterprise of subjecting conduct to the governance of rules is the only

alternative to the much worse situation described in state-of-nature theories.

By “necessary” here I do not mean that it is logically impossible to imagine

living without a state or that states must exist in some modally necessary sense.

“Necessary” here means only what “hypothetical consent” theories usually aim

to demonstrate: namely, that the point of having a state is so well grounded

in general human interests that any rational person presumably would agree to

its establishment. It is the rationality of the enterprise, and the implications of

conceding this point about the value and functions of the state, that underlie

arguments for political obligation, not actual consent. And the same is true