REVIEWS
| Published date | 01 March 1982 |
| DOI | http://doi.org/10.1111/j.1468-2230.1982.tb02478.x |
| Date | 01 March 1982 |
REVIEWS
COUNSEL
TO
PHILOSOPHERS
PROMISES,
MORALS,
AND
LAW.
By
P.
S.
ATIYAH.
[Oxford: Clarendon
Press.
1981. 218
pp.
€14-00.1
PATRICK ATIYAH’S most recent and very original contribution to
the
debate
about the prognosis of ‘the law of contract rests
on
a
paradox.
He
argues that
promises are unimportant in the law of obligations but that nevertheless the
law can help
us
to understand the source of the principle of morality that
promises should be kept. The explanation
of
this puzzling claim is, accord-
ing to Atiyah, that the basis of legal obligations even in relation to contracts
is
usually and to
a
large extent independent of the presence of
a
promise
and similarly in the case of morality, the obligation to keep one’s promise stems
usually and predominantly from independent reasons and not
the
fact that
a
promise has been given. This is
a
startling conclusion for if it is correct it
leads
us
to write
off
the work of generations
of
philosophers’ who have
sought to explicate the strange moral power of promises. Furthermore, his
conclusion forces us to reconsider the standard conceptualisation of the law
of obligations which uses the notion of
a
promise
or
an agreement to distin-
guish the law of contract from tort and restitution. If Atiyah is right, then
there is little sense in demarcating the realm of contract by reference to the
existence
of
a
promise, for the promise is not the crucial factor which gives
rise to liability.
I
believe that Atiyah is in fact wrong both in his analysis
of the legal position and with regard to the inferences he draws about the
morality of keeping one’s promise. As usual, however, he is leading
US
astray in
a
pleasing and attractive style, and his arguments are worthy of
most serious consideration.
Let
us
consider Atiyah’s thesis in more detail before
I
advance some criti-
cisms
of it.
He
claims that when
a
promise is made, the
source
of the
obligation to keep one’s promise arises not from the fact that
a
promise has
been given but on account of indepcndent reasons. What are these reasons?
They are of many kinds, but the principal ones are familiar to lawyers.
The
fii‘st reason for an obligation to arise is the fact that
a
benefit has been con-
ferred upon the promisor;
a
second reason is that the promisee has relied
upon the promisor to his detriment. For example:
A
promises to pay
f5
for
B’s
cat;
B
delivers the cat to A;
A
is under an obligation to pay
$3
to
B
because
a
benefit (the cat) has been conferred upon A. Similarly, in
a
case of
detrimental reliance, the obligation arises because of the occurrence of re-
liance, not because of the promise. Thus if
A
promises to pay
$2
to
B
to look for
his lost cat, and
B
looks for the cat all day but fails to find it, then A is
bound to pay
k2
to
B
because
B
has acted to his detriment. Apart from these
two independent reasons for holding someone to
a
promise, there are
a
host
of
other kinds of prior obligations which explain the moral force behind the
practice of promising. For example,
a
father promises to take his child to
see
Santa Claus. According to Atiyah, the father is bound to keep his promise
not because he made one but because he was already under a duty to take
care of the child and to provide for her education and amusement.
If
the source of the obligation rests in Atiyah’s view on benefit, detriment,
and prior obligations, then what is the role of the promise? Atiyah explains
that it has an evidentiary function.
In
the case of the sale of the cat, for
example, the promise evidences that the promisor intended that there should
be an exchange rather than
a
gift, that the content
of
the obligation was to
hand over
$5
for the cat, and that the promisor thought that the bargain was
fair. Similarly,
in
the example
of
the hunt for the cat, the promise evidences
the fact that A thought that
B
was justified in acting to his detriment, and
225
226
THE
MODERN
LAW
REVIEW
[Vol.
45
perhaps the promise also evidences the content of the contract and its fairness,
though Atiyah does not suggest this. Finally, in the case of the outing to
see
Santa Claus, the promise evidences the fact that the father thought that the
best way in which he could discharge his duties as
a
parent was to take the
child on such an outing, and presumably the promise also evidences the fact
that the man believed himself to be the father of the child.
From this brief glimpse of Atiyah’s theory it should be evident that his
explanation of the binding for& of promises is highly innovative. In effect
he denies that promises have an independent moral weight. Instead, obliga-
tions to perform the content
of
promise arise for reasons which‘ are indepen-
dent of the existence of the promise. The function of the promise is to
provide evidence about the content and fairness of the duty which is owed. If
Atiyah is right, then to pose the question of why should promises be kept is
seriously misleading. This question which has haunted moral philosophy
assumes that the source of the obligation lies somehow in the act of promis-
ing. It is, according to Atiyah, an assumption which has arisen from nine-
teenth-century liberal philosophies and should now be discarded.
It is, of course, true that nineteenth-century philosophers stressed the im-
portance of individual choice and that this ideal was reflected in legal doc-
trine by the way in which the law of contract, viewed as
an
exercise
of
will,
was accorded pride of place in the law of obligations. Inevitably, in both
law and morality,
a
promise was treated
as
the central case of .the way in
which duties could be undertaken. This caused moral philosophers to devote
considerable energy to the unravelling of the source of the moral obligation
to keep one’s promiscs. The problems posed by this endeavour were particu-
larly acute for utilitarians because it was hard for them to explain why
someone should keep his promise even when he could do more good or spread
greater happiness by breaking his word. In
a
sense the problem was solved
by the development of rule-utilitarianism-but only by changing the terms of
the question. Rule-utilitarians put forward reasons for thinking that observ-
ance
of
the rule that promises should be kept is on the whole beneficial, and
so
in order to gain the benefit of the rule, it has to be observed in every
case. This is really
no
answer to the earlier objection put forward by act-
utilitarians, but it does provide
a
convincing reason for the force behind the
principle that one should keep one’s promises.
Now if Atiyah is correct in
his
cxplanation of the source of obligations
connected to promises, then the rival doctrine of the rule-utilitarians will
have to be abandoned.
How
should we choose between them? Atiyah rests
much
of
his case
on
references to legal materials.
He
argues that there is no
clear rule
of
the kind envisaged by the rule-utilitarians that one should keep
one’s promises, and that the law will demonstrate that the community
emphasises the fact of ben’efit or detriment rather than the giving
of
a
promise when it is decided in
a
legal case whether
a
duty is owed. Further-
Gore, Atiyah argues that promises have differing weight according to the
strength of the independent justifications for the imposition of an obligation,
and that again legal cases will evidence such
a
variation, which also tends
to disprove the existence of
a
simple rule that promises should be kept. In
short, Atiyah ridicules the philosophers for remaining hidebound within
their nineteenth-century preconceptions about the community’s morality.
If
they looked at the real world as represented by the law, they would see
a
resurgence of benefit-based and reliance-based liabilities which arise in
a
manner which
is
independent of the presence of
a
promise
or
the exercise of
will. These new forms of liability have eclipsed the promise as the source
of
obligations, and Atiyah infers from this generalisation that philosophers
should cast their eyes about them for new understandings of the source of
moral duties which do not place such an emphasis upon the choice of the
individual.
Before philosophers follow that advice, they should consider
the
adequacy
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