My next “Advanced Topics in Law” class is devoted to illicit promises, such as the informal agreement between Don Corleone and the undertaker in the opening scene of The Godfather (Part 1) or the illegal partnership agreements so memorably depicted in the hit TV show Breaking Bad. Although the idea of an illegal or immoral agreement may sound esoteric, exotic even, illicit promises are everywhere. Consider, for example, the usurious payday loans in the case of Buckeye Check Cashing, Inc. v. Cardegna, or Shylock’s pound-of-flesh pact in Shakespeare’s immortal comedy The Merchant of Venice, or if you prefer vampire fiction, what about human-vampire agreements for the purchase and sale of blood?, or how about a modified version of the famous prisoner’s dilemma model in which the prisoners promise to obstruct justice? Simply put, many forms of wrongdoing often involve immoral promises and illegal agreements, especially given the expansion of federal regulatory crimes as well as our evolving and expanding conceptions of morality.
To the point: What is the legal and moral status of such illicit promises? Common law courts have developed a sophisticated body of legal principles and judicial doctrines in this area. In brief, courts have generally classified illicit agreements into two broad categories: those that are immoral or mala in se and those that are merely illegal or mala prohibita. Promises involving some form of moral turpitude are said to be mala in se and are void ab initio, while illicit agreements in violation of a commercial statute or an economic regulation are said to be merely mala prohibita and are often treated as “voidable” by the innocent party. Either way, illicit promises should be of theoretical interest to philosophers and legal theorists because such promises may help us delimit the outer boundaries of promissory obligations. These types of promises also exemplify the uncertain relation between ethics and law.