Solving the breaking bad problem (part 2)

In my previous post, I described one possible solution to the breaking bad problem: deny that an immoral promise is a promise. I also explained why such a philosophical solution does not work. Why not? Because a promise is a promise, regardless of its content. In this post, I will consider another possible solution. Some moral philosophers, most notably Margaret Gilbert as well as James Altham, are willing to concede that an illicit promise is, in fact, a promise, but they argue that such a promise does not generate a morally binding obligation on the promisor (the person making the illicit promise). Alas, this solution also borders on sophistry. Why? Because a promise, by definition, is something that is supposed to be binding. Philosophers like Altham and Gilbert want to have their cake and eat it too!

In short, the problem with both solutions we have seen thus far boils down to this: there are two competing moral principles in direct conflict with each other whenever someone makes an illegal or immoral promise: (i) the general obligation to keep one’s promises, and (ii) the general moral obligation to avoid harming others. To say that such promises are not morally binding or that “bad” promises are not promises simply begs the question we are trying to answer: Is there any way to reconcile these competing moral claims? Some philosophers would have us weigh the obligation generated by a promise against the obligation to avoid harm. In the words of Vera Peetz, for example, “the obligation to keep a promise may, of course, be over-ruled by some stronger obligation.” But this conclusion begs the question of what makes any given moral obligation stronger or weaker in the first place. After all, the breaking of a promise can be seen as a harmful act; how does one weigh such competing harms?

Is there a solution to the breaking bad problem? If there is, our philosopher friends have yet to find one. What if, however, we were to take a different approach–one informed by the common law? Common law courts have developed a sophisticated body of legal principles and judicial doctrines to deal with the problem of illegal bargains, so I shall turn to the common law tradition in my next few posts.

Image result for sophists

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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