My Saul Goodman-inspired solution to the problem of bad promises

Note: this is my sixth and final post in this multi-part series; end notes appear below the fold.

Does the moral paradox of bad promises have a solution? Here, I will propose a different approach, one informed by Jimmy McGill/Saul Goodman’s legal training and our common law tradition. In summary, common law courts, even those in American Samoa,[1] where Jimmy McGill received his online law degree, have developed a sophisticated body of legal principles and judicial doctrines to deal with the problem of illegal bargains, so I will conclude this chapter by turning to the law for guidance.

Legally speaking, illicit agreements come in two varieties: (i) those that are immoral or mala in se, and (ii) those that are merely illegal or mala prohibita.[2] A promise involving some form of moral turpitude is considered malum in se and is totally void, while a promise in violation of a commercial statute or an economic regulation is generally considered malum prohibitum and is thus treated as “voidable” by the innocent party.[3] By way of example, contracts tainted by mistake, duress, or even fraud are all voidable at the option of the innocent party.[4] A void contract, by contrast, does not produce any legal effects.[5] Either way, the key to this void/voidable distinction is the gravity of the harm caused by an illicit promise.

With this common law background in mind, we can now picture a continuum in which non-morally objectionable promises occupy one end of the moral spectrum, while totally immoral or mala in se promises fall on the other end of the moral spectrum, and so-called “voidable” promises would fall somewhere in the middle of these two extremes. The common law thus recognizes different degrees of contract validity by distinguishing between void and voidable illegal bargains. Likewise, we could similarly allow for different degrees of promissory duties depending on the type of harm generated by the illicit agreement.

Additionally, what if we were take into account the location of the harm? Specifically, what if we were to ask an altogether different question about illicit promises. To the point: who is harmed when an illicit promise is made? On this view, “bad” or illicit promises would fall into one of four general categories: (i) promises that harm the promisor, i.e. the person making the promise; (ii) promises that harm the promisee, i.e. the person to whom the promise is made; (iii) promises that harm both parties to the illicit agreement; and (iv) and promises that harm a third party.

This approach does not ask us to quantify the amount of harm to be caused or estimate the probability that the harm will even occur; instead, it only asks us to determine whether the harm is unjustified and where (on whom) the harm of an illicit promise will fall. We could thus formulate this legalistic framework in the form of the following question: whom does the illicit promise harm?

In summary, promises in which the harm is unjustified and external, such as any promise to harm a third party, should be considered void ab initio, i.e. promises with no moral standing or moral force. At the same time, promises in which the harm is internal–i.e. promises in which no third party is harmed but either of the promising parties, or both of them, will be harmed–should be merely voidable. In these cases of purely internal harms, the party to be harmed could exercise a “moral veto” over the illicit promise.[6] In short, the moral status of voidable illicit promises should depend on the wishes of the party who will be harmed if the promise is kept.

To conclude, the main advantage of this approach to illicit promises is that one does not need to measure the gravity of the harm or determine whether the harm caused by an illicit promise is malum in se or merely malum prohibitum.[7] What matters is the location of the harm. Of course, we still need to figure out which harms should count as “unjustified” harms.

By way of example, if I order a chicken burrito at Los Pollos Hermanos, aren’t I complicit in an unjustified external harm, i.e. the harm to the animal whose meat was used to make my burrito? If so, isn’t my Pollos Hermanos order an illicit one? What about the supply contract between the Pollos Hermanos chain and the poultry supplier? My tentative reply to the second-order problem of defining harms is this: we must be careful to distinguish between the legality of illicit promises and the morality of such promises. On my theory, a promise that generates an unjustified external harm is void from a moral perspective, so even though the poultry supply contract might be legally enforceable as a matter of law, the legal status of such an arrangement does not answer the moral question–whether the killing of animals for food consumption is justified.

One of the virtues of my harm-based approach is that it compels us to interrogate the morality of our promises, even our most prosaic and ordinary ones. If my approach makes us uncomfortable, if it makes us rethink everyday practices and promises, that is a feature, not a bug.

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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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