Note: this is my fifth post in a multi-part series; end notes appear below the fold.

May we break our “bad” promises, or must we keep them? Broadly speaking, legal scholars and moral philosophers have offered two plausible solutions to this question. One is to simply deny that an immoral promise is a promise. The other is to concede that an immoral promise is, in fact, a promise, but not a morally obligatory or binding one. As we shall see below, however, neither solution really works.

To begin with, some theorists, such as Seana Shiffrin and David Owens, define valid promises in such a way as to exclude promises to perform immoral acts. On this view of promising, a “bad” or illicit promise is not morally binding because such a commitment is not really a “promise” in the moral sense.[1] To the point, if one does not have a right to perform X (where X is some immoral or wicked act), then a promise to do X is a defective promise, i.e. a non-promise or a promise that is not morally binding.[2]

Similarly, philosopher David Owens reframes the act of making a promise as a transfer of authority from the promisor (the person making the promise) to the promisee (the person to whom the promise is made).[3] Specifically, according to Owens’s “simple theory of promising,” whenever I make a promise to someone, what I am really doing is giving the promisee (the recipient of my promise) the authority to require me to perform my promise; on this view, if I lack the authority to do something immoral or illegal in the first place, then I also lack the authority or normative power to promise to do that very same immoral/illegal act in the future, or in the words of Owens: “Where the promisor has no authority to do the thing promised (for example, a promise to kill or maim), no grant [of authority] can be made and the promise is nugatory ….”[4]

These clever reframings of the act of promising appear to solve the problem of bad promises, since promisors lack either the right to perform illegal or immoral actions (Shiffrin’s solution) or the authority to do so (Owen’s solution), but is a promise really a transfer of authority (Owen) or a transfer of rights (Shiffrin)? If so, how does a promise effectuate such a transfer? Or as none other than David Hume objected long ago, how does the mere utterance of a few words change anything about the world? Alas, all such transfer theories of promising are ultimately magical in nature, for they are unable to circumvent Hume’s famous objection.

Worse yet, these purported solutions to the problem of bad promises suffer from a fatal flaw: they are empty. Why? Because they fail to provide any substantive criterion or criteria for determining whether one has the authority or moral right to do X in the first place. Owen, for example, focuses on whether one has the authority to make a promise, while Shiffrin’s focus is on whether the person making the promise has a moral right to perform the promised act, but to determine whether one has the authority or moral right to perform X act, we need a theory to judge the moral content or moral authority of our promises. Neither Shiffrin nor Owens, however, is able to provide such a theory.

To see this objection more concretely, consider the illegal drug cartels and black markets in Better Call Saul. In an ideal world, it would be best if these cartels and their drug-smuggling operations did not exist. But we do not live in an ideal world; markets for crystal meth and other illegal drugs exist in New Mexico and beyond, so if Hector Salamanca or Gustavo Fring (see chart pictured below), or later on Walter White and Jesse Pinkman, don’t meet this demand, the reality is that other suppliers most likely will. Moreover, to the extent these illegal activities occur among consenting adults (i.e. to the extent these are voluntary markets), how can we say that no one has the moral authority or moral right to engage in the meth trade?

Other moral philosophers, by contrast, concede that an illicit promise is, in fact, a promise, but they—most notably James Altham and Margaret Gilbert—offer a different solution to the problem of illicit promises: they simply conclude that an immoral promise does not generate a morally binding obligation.[5] We can, however, dispatch this purported solution with just a few words, since it borders on pure sophistry. Why? Because a promise, by definition, is something that is morally binding. So, to say that wicked promises are not morally binding because they are wicked is simply to engage in circular reasoning. Altham and Gilbert want to have their philosophical cake and eat it too!

Stay tuned: I will offer a common sense solution to the problem of bad promises in my next post …