prior probability

Today begins Dia de los Muertos, Day of the Dead. If you’re not familiar with the holiday you might think it strange to greet someone with “Feliz Dia…

Feliz Día de los Muertos

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.

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 …

Note: this is the fourth post in a multi-part series.

Season 3 of “Better Call Saul” reconstructs the origins of the long-lasting illicit partnership between a dirty ex-cop, Micheal “Mike” Ehrmantraut, and the owner of the Los Pollos Hermanos fast-food chain (logo pictured below), Gustavo “Gus” Fring, who uses his business as a front to operate an illegal drug cartel. [Gus and Mike’s illicit alliance is also one of the central plot lines in the original “Breaking Bad” series.] In summary, after Mike’s attempt to assassinate Hector Salamanca is mysteriously thwarted at the end of Season 2, Mike eventually discovers in Season 3 that it is Gustavo Fring who has been tracking him (Mike) all along and who had foiled the assassination attempt on Hector. [See “Sunk Costs” (Season 3, Episode 3).] Although Gus has his own nefarious reasons for wanting to keep Hector Salamanca alive, he allows Mike to interfere with Hector’s drug-smuggling operations, and with this informal arrangement in place, Gus and Mike develop an uneasy truce: Gus agrees to stop tracking Mike’s whereabouts, while Mike agrees to leave Hector Salamanca alone.

Subsequently, this loose arrangement develops into a full-blown and mutually-beneficial criminal partnership when Gus arranges for Mike to be hired by Madrigal Electromotive as a “security consultant.” [See “Slip” (Season 3, Episode 8) and “Fall” (Season 3, Episode 9.] Mike needs a steady source of employment in order to launder a large amount of money that he had previously stolen from one of Hector Salamanca’s trucks–ill-gotten gains that Mike wants to leave to his family–while Gus could use an ex-policeman and someone as reliable and knowledgeable as Mike to help him carry out his underworld affairs. The rest will become “Breaking Bad” history. Gus will compensate Mike for his illicit services; Mike will do Gus’s bidding as his full-time fixer.

Thus far, I have sampled and highlighted a wide variety of illicit agreements in the series “Better Call Saul”, beginning with the staged car accident in the series premiere and with Jimmy McGill/Saul Goodman’s conman past in Cicerto, Illinois and then continuing with several criminal conspiracies from the first three seasons of the series. In addition to the Pollos Hermanos Conspiracy described above, we have described Nacho Varga and Mike Ehrmantraut’s hitman contract (“The Tuco Salamanca Conspiracy”) and the illicit dealings between Jimmy and Craig and Betsy Kettlemans (“The Kettleman Conspiracy”).

Broadly speaking, these sundry illicit promises should be of philosophical and jurisprudential interest to us because they pose a kind of moral paradox. On the one hand, we have a moral duty to keep our promises, but on the other hand, we also have a moral obligation to avoid harming third parties. As a result, there are two competing moral principles in direct conflict with each other whenever someone makes an illegal or immoral promise. The philosophical and jurisprudential question is: how should we resolve this moral contradiction? Starting next week (Monday, Nov. 1), I will further explore this paradox and explain why previous attempts to resolve this moral contradiction fall short.

Note: this is the third post in a multi-part series.

As I see it, the “Better Call Saul” character who exemplifies the moral paradox of illicit promises the most (aside from Saul/Jimmy) is retired ex-cop Michael “Mike” Ehrmantraut. [As an aside, Mike is my favorite character of the entire series!] Season 2 of “Better Call Saul”, for example, features an illicit alliance between Ignacio “Nacho” Varga and Mike Ehrmantraut, who conspire against Nacho’s boss, a powerful drug lord named Tuco Salamanca. Nacho works for Tuco, helping him run his illegal drug operations in Albuquerque, and is one of Tuco’s most trusted men. But when Tuco repeatedly violates the number one rule of the drug trade—”don’t get high off your own supply”—Nacho hires Mike, who he trusts from their multifarious previous dealings, to assassinate Tuco. [Or as Nacho puts it in “Amarillo” (Season 2, Episode 3), “There’s a guy. And I need him to go away.”] Mike then formulates a fail-proof assassination plan—the use of a discreet and expert sniper—and he offers to be that sniper in exchange for $50,000.

Although this hitman deal is no doubt an illegal one—and possibly immoral too—Mike, a man of his word, refuses to accept the full $50,000 payment when he is unable to follow through on his original assassination plan. Specifically, when Mike modifies the plan–instead of killing Tuco, he decides to stage an altercation with him in order to get Tuco arrested for assault with a deadly weapon, which carries a mandatory prison sentence of five to ten years—Mike reduces his original fee down to $25,000. [“Gloves Off” (Season 2, Episode 4).] Furthermore, when Mike’s illicit plot backfires altogether, Mike gives Nacho a full refund(!), returning the 25K to Nacho in its entirety. [“Bali Ha’i” (Season 2, Episode 6).] That Mike would feel obligated to return money paid based on an illegal promise is, to me, the most striking and morally-salient aspect of this entire ordeal: despite his best efforts, and through no fault of his own, Mike feels morally compelled to return his payment because has failed to uphold his part of the original deal with Nacho.

But Mike dealings with Nacho are not his only illicit agreements; for thus far in the series Mike has yet to meet the enigmatic Gustavo Fring. I will further explore the illicit relationship between Mike and Gus in my next post …

Note: this is the second post in a multi-part series.

Craig Kettleman, a thieving treasurer, has been accused of embezzling $1.6 million in taxpayer dollars from Bernalillo County. With the help of his wife Betsy, who is fully aware of her husband’s crime, the Kettlemans (pictured below) decide to keep their ill-gotten gains and soon go into hiding, and at one point, they offer Jimmy McGill the sum of $30,000 to keep their hiding spot a secret. [“Hero” (Season 1, Episode 3).] The criminal conspiracy between Craig and Betsy Kettleman, not to mention their bribing of Jimmy, once again generates a difficult moral dilemma: should Jimmy keep his promise to stay quiet? After all, he has accepted their money, and we have a moral duty to keep our promises. But at the same time, lawyers have an ethical duty to avoid assisting a client—even a prospective one—in conduct that the lawyer knows to be criminal. [See, for example, Model Rule 1.2 of the American Bar Association’s Model Rules of Professional Conduct, which prohibits a lawyer from counseling or assisting a client in conduct the lawyer knows is criminal or fraudulent.]

But Jimmy McGill/Saul Goodman is not the only character in “Better Call Saul” who is a party to an ongoing illicit agreement. As it happens, most of the characters in this popular spin-off series, just like most of the characters in Breaking Bad, end up making promises that are either illicit or illegal, or both. For the record, I will highlight two additional illicit relationships in “Better Call Saul” in my next post …

Note: this is the first post in a multi-part series.

The proposition that “promises ought to be kept” is quite possibly one of the most important normative ideals or value judgements in daily life. [1] But what about illegal or immoral promises?

Philosophically speaking, what is the moral status of such illicit agreements, i.e. promises that are wrongful in some legal or moral sense? What moral obligations, if any, do illicit promises generate? As it happens, these philosophical questions are posed time and time again in the hit TV show Better Call Saul, beginning with the episode “Uno”–the series premiere–when our hero Jimmy McGill (pictured below, right), with the help of two teenage accomplices, orchestrates a phony vehicle-pedestrian accident in order for Jimmy, a small-time struggling Albuquerque attorney, to lure a prospective client.

In brief, Jimmy’s accomplices agree to help him stage a car accident in exchange for $2000. The moral dilemma, however, is this: Had this elaborate but illicit scheme worked according to plan (spoiler alert: it did not!), wouldn’t Jimmy have been morally obligated to keep his promise to pay the twins the promised $2000? After all, we have a general moral obligation to keep our promises, but at the same time, Jimmy’s promise was part of an illicit scheme; his promise to pay off his accomplices was an immoral one. So, how can one have a moral obligation to perform an immoral action?

Moreover, in many ways Jimmy’s entire persona–beginning with his conman’s past in Cicero, Illinois–is a living embodiment of this moral paradox. Back in Cicero, for example, Jimmy’s closest friend was Marco Pasternak (pictured below, left), a fellow con artist. Together, they would run an elaborate con in which they duped unsuspecting marks into buying fake Rolex watches. [See, for example, “Hero” (Season 1, Episode 3) and “Marco” (Season 1, Episode 10).] The mark thinks he is buying a genuine Rolex, but he must also know that what he is doing is wrong; after all, he is buying a dead man’s Rolex with the dead man’s own money! So, is the mark morally entitled to get “his” money back? And if so, do Jimmy or Marco have a moral obligation to provide such a refund?

Either way, it is no exaggeration to say that all the relationships in “Better Call Saul” are explicitly premised on illicit promises! To see how, I will identify several such ongoing “illicit agreements” in my next few blog posts.

[1] See, for example, David Hume, A Treatise on Human Nature, Book 3, Part 2, §5 (David Fate Norton & Mary J. Norton, eds.) (Oxford Univ. Press, 2000). See alsoAllen Habib, Promises, in Edward N. Zalta, ed., The Stanford Encyclopedia of Philosophy (2018). Cf. Mary Midgley, “The Game Game”, Philosophy Vol. 49, (1974), p. 235: “[P]romising is everywhere a kingpin of human culture.”

My next “Advanced Topics in Law” class, which is scheduled for later today, will be devoted to Bitcoin and cryptocurrencies generally, so before I start blogging about Better Call Saul and the problem of illicit promises, I want to share two recent headlines regarding Bitcoin with my loyal followers:

For the record, here is a link to the Peter Thiel article (dated Oct. 21, 2021), and here is a link to the Jamie Dimon article (Oct. 11), but more importantly, who is right about Bitcoin: Thiel or Dimon? To the point, is Bitcoin an irrational bubble, or the best thing since sliced bread?

Bonus Video: Check out this entertaining rap battle between “Alexander Hamilton” (anti-crypto) and “Satoshi Nakamoto” (pro-crypto):