That is the title of my latest work in progress, which is about the moral and legal status of illicit promises, defined broadly as promises to perform illegal or immoral acts. (Shout out to my colleague and friend Dan O’Gorman for suggesting this super-sexy title to me.) Among other things, illicit promises pose a fascinating moral paradox. On the one hand, we have a general duty to keep our promises, but on the other hand, we also have a general duty to obey the law and avoid immoral actions. So, what happens when we make a promise to do just that, to break a law or perform an immoral act? I began working on this paper a couple of years ago, but I made substantial revisions this summer, and the revised paper is now available here, via SSRN. Comments are welcome. I will be blogging about this paper next week; in the meantime, here is the abstract:
When are illicit promises morally binding? Although sundry moral philosophers and legal scholars have offered a wide variety of theories to explain why and when promises are morally binding, there is a significant blind spot in this conversation, for few theorists have given sustained attention to the problem of illegal and immoral promises. Even Charles Fried, for example, makes no mention of illegal or immoral agreements in his classic work Contract as Promise. This Article thus explores the law and ethics of illicit promises …. After presenting several motivating examples to illustrate the problem of illicit promises, such as promises to join criminal partnerships, promises to repay usurious loans, and promises to obstruct justice, the Article explores the logic of illicit promises and attempts to explain why existing moral and contract theories are unable to come to terms with this problem. This Article then proposes a framework inspired by the common law and applies this new framework to the examples introduced earlier in the paper. The Article also explains how this common law framework sheds new light on old contract doctrines such as fraud in the inducement and duress.