Philosophical Perspectives, 23, Ethics, 2009

PROMISING AND OBLIGATION1

Thomas Pink
Kings College London

1. Promising the communication of an intention to obligate oneself?

Promises to do things are made by promisors to promisees. And they

typically leave the promisors morally obliged to act as promised an obligation
they have to the promisee, who thereby acquires a moral right to what was
promised to them.
How is this possible? For it is not a trivial fact that promisors owe it morally
to promisees to keep promises. Whether a promisor is morally bound to do
what he promised whether breach of the promise would be blameworthy
wrongdoing can in a particular case be a substantial moral question, the
resolution depending much on debate about factors such as disproportionate or
unexpected burdens falling on the promisor, the possibility that the promise was
induced by coercion or deceit, and so forth. On the other hand it does seem a
fundamental part of our understanding of promising that absent such factors
it can and normally does obligate the promisor. People who make promises
would generally acknowledge that they are thereby imposing a moral obligation
on themselves to act as promised, such that subsequently breaking the promise
would normally be wrong.
Does the possession, or at least the expression by the promisor of an
intention to obligate himself play any role in promising and in the generation
of promissory obligation? Many modern authors would suppose so: by its
very nature, they suppose, the act of promising involves the communication or
expression of an intention to obligate oneself a communication or expression
that, if various conditions are met, can then obligate the promisor. Here, for
example, is John Finniss account of a promise:

First, what is a promise or undertaking? Being a human practice, engaged in

and maintained for diverse practical purposes, promising has its central cases (its
focal meaning) and its secondary or borderline cases. Centrally, then, a promise
is constituted if and only if (i) A communicates to B his intention to undertake,
390 / Thomas Pink

by that very act of communication (in conjunction with Bs acceptance of it),

an obligation to perform a certain action (or to see to it that certain actions are
performed), and (ii) B accepts this undertaking in the interests of himself, or of
A or of some third party C.2

And here is another account by David Owens along similar lines:

But at least this much is true: I am not promising to take you home unless,
in saying what I say, I mean to communicate an intention to undertake an
obligation to take you home.3

Joseph Raz speaks of promissory obligation as a voluntary obligation in that

it is undertaken by acts performed in order to undertake an obligation4 and
has defended what he calls an obligation conception of promising, according
to which:

To promise is, on this conception, to communicate an intention to undertake by

the very act of communication an obligation to perform a certain action.5

So, on this widely held view, a promise is an action by which someone

(the promisor) deliberately communicates or expresses an intention to obligate
themselves to another person (the promisee); and can, subject to the consent or
acceptance of the other, by that action bring it about that they are so obligated.
There are two parts to this doctrine. First, there is a claim about the act of
promising itself: that promising serves to express or communicate an intention to
obligate oneself. Now not all promisors need actually possess such an intention.
But those promisors that do not are still communicating or suggesting otherwise,
and assuming they understand what promising involves, are, by that very fact,
being insincere or deceitful. Perhaps such promisors really intend not to act
as promised, and so intend or at least prefer if possible to escape any moral
obligation, and by promising strive to mislead the promisor as to their true
intentions. Whereas a sincere promisor will always really hold the intention that
his promise expresses; he really will mean to obligate himself. Second, there
is a claim about promissory obligation itself: that its source is to be found in
the promisors communication, whether honest or deceitful, of an intention to
obligate himself. Promising therefore involves a noteworthy, even remarkable,
normative power a power morally to obligate ourselves voluntarily or at will,
just through expressing an intention to become so obligated.
My purpose in this paper is to establish two conclusions. The first is about the
intentions of promisors, and, connectedly, about how promisors are understood
by others. It is perfectly true that many promisors may well intend to obligate
themselves to act as promised, and may well frequently be understood both by
promisees and by third parties to possess this intention. But, I shall argue, a
 Promising and Obligation / 391

perfectly sincere and competent promisor may still make his promise without
holding any such intention. A perfectly sincere promisors motivation his goal
in making the promise need have nothing to do with actually incurring such
an obligation, but may be quite different, and be understood to be such by the
promisee. Each party may recognize or be ready to acknowledge that through
the promise an obligation has been created. Promises generally create obligations
to act as promised; and to have any understanding of what promising involves
is to know this, or at least to know that people generally view promises in these
terms. But the creation of the obligation need not have been the purpose of the
promisor or something desired or hoped for by the promisee, and neither party
to the promise need suppose otherwise. In such a case there need be nothing
incompetent, insincere or deceitful about the promisor or his promise.
Secondly, and most importantly, even if a promisor does hold an intention
to obligate himself to act as promised, the expression of such an intention plays
no role in the generation of promissory obligations, which originate in quite
another way. The use of terms such as I promise by the promisor may serve to
acknowledge the existence of a consequent moral obligation to act as promised,
whether or not this obligation was specifically intended. But the source of the
obligation does not lie in any such acknowledgement of an obligation, still less
in the expression of an actual intention or purpose that the obligation arise. The
source of the moral obligation lies instead at a deeper level, in an activity that
does not require the use of terms such as I promise, and that certainly has
nothing to do with any expression of an intention to obligate oneself.
Promising in everyday life contrasts importantly with the use of legal
formulae that may have as their sole function the creation of a new legal relation,
such as a transfer of rights or a legal obligation. The sole function of a formula
such as I hereby bequeath or I formally contract may be simply to effect a legal
transfer, or to impose on oneself a legal obligation; without the use of these set
forms, the transfer or the imposition of the legal obligation may not be possible.
In which case someone who uses these expressions, and does so with a competent
understanding of their function, may be said to be expressing an intention to
effect the transfer or to impose on themselves the legal obligation. But the
expression I promise to, at least outside a specifically legal or institutional
context, is not the same. The apparently sincere utterance of these words may,
in general, impose an obligation on the speaker. But the production of that
obligation need not exhaust the function of that expression. Indeed promising
may have other functions, and other things may be done by a promisor than
simply undertaking an obligation things that might be done even without the
use of expressions such as I promise to; and it may be these other things done
that help explain the obligations which promising generates. In which case, even
if all parties may foresee the obligation that a promise produces, their goals and
intentions may not lie in the production of that obligation, but may rather have
to do with those other things done. Or so I shall now argue.
392 / Thomas Pink

2. What promise-makers intend

There is something strange about the standard account of the intention

expressed by a promise. It is left entirely to do with the moral status of the
promisors future actions. In promising the promisor is supposed, if sincere, to
be concerned with ensuring that he is obliged to do something. For the presence
of such a concern is supposed to be what his promise conveys. Now, as we have
already agreed, people certainly treat promise makers as frequently under a moral
obligation to keep their promises. At least they view the deliberate breaking of
a promise as generally wrong, unless the promise was to do something wrong in
the first place, or unless the promise is broken for some fairly good reason. But
this does not mean that promise makers need have formed an actual intention
to obligate themselves; that it was changing the moral status of their future
actions that was their goal, or that the lack of such an intention involves any
insincerity.
Suppose, for example, that I am a doctor faced by a worried patient who
wants me to be present next week at a crucial operation. The worried patient
begs: Promise me doctor, that you will be there. And I reassure her: I promise.
My goal in making this promise is, surely, to give my patient something she has
requested and badly wants. But precisely for this reason my goal need not be to
change what I am morally obligated to do. For my promisee need not be at all
interested in what duties I am to be under.
Were the matter raised, the patient might well agree that in promising I am
obligating myself to her. But I doubt that it is that obligation in her favour that
she need particularly want to receive. What the deeply worried patient clearly
wants is my presence at the operation and assurance of this presence in
advance. And in making my promise my intention will be to offer the patient
precisely what she wants not an obligation on my part to be present, but my
actual presence, with prior assurance that I will in fact deliver on the offer. Why
should obligations matter to either of us provided my promise constitutes the
offer and reassurance that the patient wants, and provided I do eventually deliver
on my promise by actually being present at the operation?6
It might be thought that the existence of the obligation must matter to
the patient. For what else will reliably motivate me to act as promised but the
existence of a moral obligation to do so? Without that motivation, how can the
patient be assured that I will be there as promised?
Certainly some philosophers have thought that only a sense of duty a
belief that one is under a moral obligation to deliver will motivate promise-
makers to keep their promises. Hume made this very claim as part of his famous
argument for the artificiality or conventional origin of the obligation to keep
promises:

Now tis evident we have no motive leading us to the performance of promises,

distinct from a sense of duty. If we thought, that promises had no moral
 Promising and Obligation / 393

obligation, we never shoud feel any inclination to keep them. This is not the
case with the natural virtues.7

But it is simply not obvious that Humes claim is true. Why cannot a promise
maker be motivated simply by the thought that they have promised that
they have given their word? The content of this thought is not obviously
about obligations at all, and its motivating force does not strictly depend on
thoughts about obligation. Which is why someone can intelligibly be motivated
to keep a promise even when sceptical about whether they are really bound
by any obligation to do so. Suppose, because of a quite unexpected change in
circumstances and the resultantly and suddenly huge cost to him of keeping
his word, the doctor wonders whether it might indeed have become strictly
permissible for him not to keep his promise to his patient. He might surely still
be motivated to keep his promise by the thought that nevertheless, permissible
or not, he had given his word. Such a motivation might appear quixotic
to some. But the motivation is not unintelligible, and it does not involve
thoughts about moral obligation. I shall return to say something of what it
might involve.
Notice in particular that even if as the doctor I am not at all concerned with
the moral status of my future actions I am concerned simply to provide honest
reassurance to the patient that I will indeed be there I am plainly not being in
any way deceitful or insincere, nor am I being incompetent in my use of language.
My utterance of the promise need not be in any way misleading to the patient,
for she need not understand me as having the production of a moral obligation
as my goal. My sincerity as a promisor she will understand as lying not in the
genuineness of my intention to obligate myself to her, but in the honesty of my
offer to her of my future presence at the operation. And in failing to attribute
to me any actual intention or purpose of obligating myself, just as the patient
is not failing to understand me she understands me well enough as seeking
honestly to reassure her so she is not being deficient in her understanding of
what promises are, or what the sincere utterance of a promise implies about a
promisors state of mind. This doctor-patient exchange is an entirely normal case
of promising. Despite the very possible absence in both parties of any intention
of or concern with obligation, there seems nothing defective or borderline
about it.
I suspect that with many promises in everyday life, such as the promise
made to the worried patient by the doctor, thoughts about obligation often arise
first only when or if the promise gets broken; and these thoughts will arise,
in particular, in the mind of the promisee who feels wronged by the promisor.
But even here the promisee will not simply feel that they have been deprived of
something they had a right to. They may also feel hurt and diminished. And the
feeling of hurt that often meets broken promises is something we need to say more
about. It is certainly not explained simply by referring to some obligation that the
promisor has breached. For one can easily feel that one has been denied a right
394 / Thomas Pink

without feeling especially hurt or personally diminished by that denial. Whereas

there clearly is something rather personal about someones breaking their word
to you. And a theory of promising needs to explain what this personal hurt might
involve.
What must a promisor really intend? Clearly, they must intend to convey an
offer to the promisee an offer of the action promised with an assurance or
pledge of delivery on that offer that involves but goes beyond the mere expression
of an intention to deliver. But though promises may generally obligate, as we have
seen it need not be the promisors actual intention that they should. Even if the
obligations generation may be foreseen, the purpose of making a promise need
not be to generate that obligation, or to offer the obligation to the promisee.
What the promisee is offered first and foremost is not the moral obligation,
which in many cases they are unlikely to want, but something quite different
and of much greater interest to most promisees performance of the action
promised.
Besides promises to do things or promises to promises as to performance
or performance promises there are promises as to fact factive promises
or promises that.8 I promise you it really happened, right before my very
eyes. Now there seems something about promising that which leaves it very
like promising to. But the thing in common is not obviously the expression of
a corresponding intention to obligate oneself. That is, it does not seem that
as promisors to (supposedly) express an intention to obligate themselves to, so
promisors that express an intention to obligate themselves that. For there are no
obvious obligations that. Obligations are always obligations to obligations to
perform, to do things or refrain from their doing.
It is tempting to cast around for some obligation to perform that all makers
of factive promises distinctively incur through making their promise, so that
their making of a factive promise that can express their intention to incur this
obligation. But what might this obligation be? Is it an obligation to speak the
truth, or at least to take care that truth is spoken? But in ordinary assertion such
an obligation is plausibly incurred anyway, whether or not a promise as to fact is
actually made. Perhaps then it is some further, more demanding obligation. But
the candidates are not obvious. Certainly there is no single candidate as obvious
as the obligation on the maker of a performance promise to perform the action
promised.
Of course it might be that promising that has nothing much to do with
promising to; it might be that promising that is a peripheral phenomenon, that
sheds no light on promises as to performance. But I shall suggest that that is not
so. We shall find that promises that and promises to work in the same way
when considered at a deeper level that is not itself to do with obligations. And
it is only when considered at that deeper level that the genuine connexions that
there are between performance promises in particular and obligation will really
become intelligible.
 Promising and Obligation / 395

3. Hume and Locke on promising

Locke thought that we had a natural or pre-social power to make promises

or enter into agreements:

The Promises and Bargains for Truck, etc. between the two Men in the Desert
Island, mentioned by Garcilasso De La Vega, in his History of Peru, or between
a Swiss and an Indian, in the Woods of America, are binding on them, though
they are perfectly in a State of Nature, in reference to one another. For Truth
and keeping of Faith belongs to Men, as Men, and not as Members of Society.9

Whereas Hume denied that we had any such pre-social power. For Hume, the
possibility of promising must depend on the existence of a social convention or
practice of promising:

I say, first, that a promise is not intelligible naturally, nor antecedent to human
conventions; and that a man, unacquainted with society, could never enter
into any engagements with another, even tho they could perceive each others
thoughts by intuition.10

What is at issue? Plausibly the use of the words I promise in making agreements
involves and requires what Hume calls human convention, just as does the
use of any linguistic term. If promising is seen as a practice that, by its very
nature, is dependent on the use or availability of certain linguistic expressions,
then it might seem as though Humes point follows immediately. The possibility
of promising must indeed depend on the existence of a convention or practice of
promising.
But Humes position is not so trivial. For suppose the possibility of promising
did depend on the availability of a certain kind of linguistic expression.11 It would
not follow that the obligations and related rights that fidelity to promises respects
were conventional in basis. For it might still be that these obligations and rights
precede the practice of making and keeping promises and that they shape and
determine the form which that practice takes. Whereas Humes position was in
fact the opposite: that these obligations and rights are products of and dependent
on the practice of making and keeping promises, and that it is the form which
that practice has taken which has determined the nature of these obligations and
rights.
Hume sees promising and the virtue or obligation of fidelity to promises
as part of what he calls artificial virtue morality in a form that depends on
and derives from a variety of conventions, conventions that have been developed
not to assert and protect pre-existing moral standards, but in order to attain
quite different ends. Promising is in the same category as justice understood as
respect for property, as allegiance to the state, and as chastity or marital fidelity.
396 / Thomas Pink

Conventions that determine what counts as the making and keeping of promises,
that define what constitutes ownership and the constitution of the state and of
political authority all these have arisen the better to enable individuals to
further their own self-interest. But in so far as respect for these conventions,
just by furthering the self-interest of the generality of individuals, equivalently
serves the common good, so we come morally to approve of such respect, and
to regard it as morally virtuous and obligatory. So conventions that developed
to further individuals self-interest come to define new forms of moral right and
obligation forms of right and obligation that would not have existed at all
without those conventions.
Now this sort of claim, at least regarding some obligations and rights, was
not original to Hume. It formed part of a project that ran through the natural
law ethics that was widely taught in Protestant universities in Humes youth. For
it does seem intuitive that many parts of morality and the rights and obligations
that compose them might be brought into existence by the development of
various forms of social interaction.
Perhaps the point is most intuitive in respect of property. Whether we
conceive of humanity as living originally in some earthly paradise or else in
some condition of primitive and uncultivated want, it seems unobvious that there
were always property rights and obligations to respect them. Perhaps instead
property rights only appeared through a process of human social development.
As for property, so for other things too, such as the existence of states and
forms of political authority with concomitant rights to command or legislate
and obligations to conform to legislation.
So central in particular to the modern or Protestant natural law tradition
was the project of explaining some parts of morality as not natural or original
to human nature but as instead artificial, in Humes phrase, or as adventitious,
to use the term of his predecessor, the 17th century natural lawyer Samuel
Pufendorf. These developmental accounts of human morality were linked to
general theories of human social, economic and political development. For the
development of artificial or adventitious forms of morality went hand in hand
with the development of the social institutions and structures that those new,
humanly generated forms of morality governed. In the Protestant natural law
tradition we see moral theory linked to highly inventive exercises in history
and social science. And though Hume was not himself a natural lawyer he
specifically denied what natural law affirms: that moral obligation consists in the
existence of a distinctively practical form of reason in legal or demanding form
that governs us just as possessors of a rational, human nature12 he otherwise
perpetuates and further develops much of the social scientific and historical
research programme of his predecessors.
By what mechanism of social interaction was artificial virtue brought into
existence? Pufendorf had taken the relevant mechanism to be that of pacta of
pacts or agreements.13 So, for example, property and our obligation to respect it
was to be explained in terms of agreements to institute and abide by certain rules
 Promising and Obligation / 397

of property agreements that it served each individuals interests to enter into.

But if the adventitious or artificial is the creation of agreement, and agreements
are exchanges of promises, that might make it appear that the obligation to keep
promises must at least be natural. On the other hand, for Pufendorf pacta or
agreements need not involve the actual exchange of promises. They can include
something more like conventions as well as formal promises. For example, it is
supposed to be pacta which generate even linguistic meanings. But clearly the
basis of linguistic meanings plausibly lies not in promising, but in the gradual
development of shared habits or conventions of linguistic use.
What Hume clearly perceives as Pufendorf does not, is the important
difference between a mere convention or mutual adaptation of behaviour and
an actual exchange of promises. So Hume replaces Pufendorfs appeals to
undifferentiated pacta. The relevant artificial virtue-creating mechanism of social
interaction for Hume is definitely convention a kind of mutual adaptation of
behaviour in the pursuit of individual self-interest that need never involve any
exchange of promises. That done, Hume is then in a position to explain promising
and the obligation to keep promises as itself, like language, political allegiance
or property, a product of convention.
But otherwise Hume follows the same strategy as Pufendorf. For both
thinkers, artificial or adventitious morality and the social institutions that come
with it are all creations of human self interest in enlightened form self interest
that motivates us to make pacts and agreements and to establish and follow
conventions. Both thinkers conceive of promising and agreement, then, as a
feature not of generous giving nor of friendship, but of a common pursuit of
individual self-interest. Thus Pufendorf:

From what has been said, it is understood how works of humanity or of love
differ from those which are required from a right properly understood, and are,
therefore, directed by actual justice. The former are not caused by nature of
agreements, express or implicit, but are laid upon all men by nature herself on
mere grounds of obligation. But whatever things I owed a man from agreements
or covenants, I owe because he has secured a new right against me by my own
consent. Furthermore, whatever I have done with another man in agreements, I
have done not so much for his advantage as for my own, while in the duties of
humanity the very opposite is the case.14

There is much of importance in common between Pufendorf and Hume. Both

openly differ from Hobbes in seeing an important category of our obligations to
others as arising naturally, independently of any agreement or convention. Both
believe in a natural morality of obligations of what Pufendorf terms humanity or
love and Hume terms benevolence. Independently of any social interaction, this
wholly natural part of morality commits us just as human beings to providing
various kinds of basic help to those in need, and to refraining from various
kinds of assault and harm. It is the establishment of conventions and pacta or
398 / Thomas Pink

agreements which thereafter extends this initially natural morality into new and
humanly created, adventitious forms and which does so, at least immediately,
in the service of self interest rather than benevolence.
And this brings us back to the original dispute between Locke and Hume.
Why suppose with Hume that the rights that fidelity to promises protects are
products of convention, rather than preexisting rights that help shape the form
that our practice of making and keeping promises takes? For many will find
something deeply intuitive about Lockes claim that

Truth and keeping of Faith belongs to Men, as Men, and not as Members of
Society.

So we must examine Humes conventionalist theory of promising and promissory

obligation in more detail.

4. The promising convention

The obligation to keep promises is, for Hume, the product of a particular
convention, a promising convention. What is the function of this convention, and
how has it arisen? Humes claim is that the convention arises to meet a particular
need that of enabling and facilitating self-interested exchange.
How can self-interested agents provide others with goods and services with
the assurance of receiving a definite return in exchange? The problem is supposed
by Hume not to arise with simultaneous exchanges, since if one party ceases
reciprocating the other can just as immediately stop performing too. But what if
a return can only be made later?

Now as it frequently happens, that these mutual performances cannot be finishd

at the same instant, tis necessary, that one party be contented to remain
in uncertainty, and depend on the gratitude of the other for a return of
kindness.15

But why suppose that having received what they wanted, the equally self-
interested counterparty will ever make that return? Gratitude wont reliably
motivate the predominantly self-interested. So, to take his famous example,
Humes two farmers each have fields in need of harvesting. Neither farmer can
harvest his own fields alone; each farmer needs the others help to get his harvest
in. But neither farmer will help first as neither sees any likelihood that their help
will be returned. For why should the counterparty see it as in his interest, once
his fields are harvested, to return the help?

The seasons change; and both of us lose our harvests for want of mutual
confidence and security.16
 Promising and Obligation / 399

Self interest may of course get canny, or at least optimistic. We only need
the hopeful thought to spread that favours done without hope of immediate
advantage may yet eventually be returned and bring long term advantage to
their provider. Through the prevalence of such thinking we may enter a cycle
of mutually advantageous self-interested exchange. But a problem nevertheless
remains. How to mark out interactions where a return is expected, and distinguish
them from the more generous and noble intercourse of friendship and good
offices where return is not in question? And where a definite and specific kind
of return is expected, how most securely to motivate and tie the other party into
making not only some return at all but, moreover, that specific return?
Hence the development of a promising convention. The language of promis-
ing marks out the commerce of self-interested exchange. And according to this
convention whenever someone uses a certain distinctive mode of expressing an
intention to do A, such as by saying I promise, they are thereafter to do A, at
the risk of not being trusted by potential cooperators again if they do not.

In order, therefore, to distinguish those two different sorts of commerce, the

interested and the disinterested, there is a certain form of words invented for
the former, by which we bind ourselves to the performance of any action. This
form of words constitutes what we call a promise, which is the sanction of the
interested commerce of mankind. When a man says he promises any thing, he
in effect expresses a resolution of performing it; and along with that, by making
use of this form of words, subjects himself to the penalty of never being trusted
again in case of failure.17

By using the expression I promise, a counterparty becomes motivated by self-

interest, thanks to the threatened penalty, to reciprocate in the way promised. He
then becomes a really credible exchange partner, and both sides can then embark
on a mutually advantageous pattern of exchange:

All of them, by concert, enter into a scheme of actions, calculated for common
benefit, and agree to be true to their word; nor is there any thing requisite to
form this concert or convention, but that every one have a sense of interest in
the faithful fulfilling of engagements, and express that sense to other members
of the society. This immediately causes that interest to operate upon them; and
interest is the first obligation to the performance of promises.18

As benevolent agents capable of concern for others and the common good, we
see that everyone benefits from the existence of the promising convention. The
promising convention does what needs to be done: to mark out actions expressive
not of gratuitous generosity and friendship, but performed self-interestedly
out of expectation of exchange; and to ensure that that exchange is in fact
made. As a result the hoped for non-simultaneous exchanges are facilitated.
And so, with the common good in mind, we come to view the keeping of
400 / Thomas Pink

promises as morally obligatory, and come to see fidelity to promises as a moral

virtue:

Afterwards a sentiment of morals concurs with interest, and becomes a new

obligation upon mankind. This sentiment of morality, in the performance of
promises, arises from the same principles as that in the abstinence from the
property of others.19

5. Criticism of Hume

I have presented the issue of the artificiality of promising as being about

the obligations and rights that fidelity to promises conforms to and respects.
Are these, as Hume supposes, the product of a convention or practice a
practice that originally served purposes other than that of respecting such rights
and obligations? Or are the obligations and rights prior, and is it these that
have in large part shaped the practice of promising? Obviously one element in
promising the language by which the concept of promising and the intention
to promise is expressed is conventional. But the involvement of convention in
our capacity to oblige ourselves through promises might go no wider than that.
There is one obvious line of objection to Hume. Take the exchange of
services, such as those which Humes self-interested farmers provide by each
helping with the harvest of the other. Is the obligation of one to make the
promised return to the labour provided by the other really unintelligible apart
from an existing practice and convention of making such a return? Hume is
adamant that it is so unintelligible:

. . . a promise is not intelligible naturally, nor antecedent to human conventions;

and that a man, unacquainted with society, could never enter into any engage-
ments with another, even tho they could perceive each others thoughts by
intuition.20

But is there not something immediately intelligible or natural about such an

obligation, prior to the establishment of any practice, just as Locke supposed?
To make out the naturalness of the obligation, Hume supposed we would
have to appeal to a peculiar supposed natural power that each possesses to impose
obligations on himself at will. And he denied that there was such a power. But
in fact we have no need to posit any such power. What instead we need is a kind
of natural right possessed by each to determine under what conditions he will
provide goods and services to others, at least in cases where he is not obliged
to provide those goods and services in any case. One function of promising is
simply to acknowledge and respect this right. I promise to you that I will help
you with your harvest tomorrow if you help me with my harvest today. In so
promising I recognize your right to make your help today conditional on the
help being returned by me later.
 Promising and Obligation / 401

For Hume, the idea of an obligation to reciprocate is only supposed to arise

with the practice of promising. And the practice of promising is only required in
cases where a simultaneous exchange is not possible and one has simply to trust
the other to perform. A practice then arises to motivate and guarantee the hoped
for reciprocation. And from this practice the idea of an obligation to reciprocate
as promised then arises. Prior to the practice there is no obligation, and no right
to expect reciprocation or unjust denial of that right.
But, contrary to this, the idea of an obligation to make a return can surely
be invoked immediately, in relation to any exchange, simultaneous or otherwise.
Suppose Humes farmers find themselves in sight of each other, each standing
by chance on the others property, but separated by a sudden river flood that
neither can ford, and that will diminish only after the sowing season is over.
Each is in a position to sow the others crops, and there is no one else to do the
job. Even prior to the establishment of any practice of promising, each can make
it clear, by shouting out what he is willing to do, or through otherwise signaling
or implying this across the flood, that he will sow the others fields, but only
provided that the other reciprocates. And so, keeping their eye on the other, each
sows, though only provided he sees the other still involved in sowing too. With
each in full sight of the other, this looks like a case of simultaneous exchange.
In which case it seems that as yet there is no need of some special practice to tie
either farmer into reciprocating. And so on Humes theory there is no room yet
for any obligation or sense of such.
But supposing one of the farmers discovers later that despite all appearance,
somehow the other (a master illusionist) managed only to feign the effort and
so avoided actually sowing any seed at all. Is it not natural to suppose a sense
of wrong in the discoverer that he has not only been deceived but defrauded?
It is as with any other exchange. Each can see in themselves and others a right
to determine under what conditions he will do things for the other. Each can
recognize the assertion of such a right, and each can recognize its violation.
To fail to respect that right through fraudulent deception is in fact as much
an invasion of anothers liberty as would one farmers actually physically forcing
the other to sow his fields, supposing the farmer could do that. Even supposing no
further injury were done to the farmer so compelled, he would still view his being
so coerced as an intrusion on his liberty. And would we need a convention to see
the application of such coercion as wrong? Surely if there is anything to Humes
natural and preconventional virtue of benevolence, forcing the other farmer to
sow his fields unrewarded would be contrary to the natural duty towards others
that both Pufendorf and Hume defend against Hobbes. Why then the need for a
convention to make sense of the wrongfulness of producing the same result by a
deception?
Plausibly, natural morality requires us to make certain goods and services
available to others in sufficient need and to do so whether or not we ever
agreed to, or whether or not any convention has arisen of so helping others. But
beyond these duties and granted their extent, it is equally natural to suppose that
402 / Thomas Pink

natural morality affords us a certain liberty. This liberty involves an obligation

on others under normal conditions not to coerce us or to force us into action
against our will. And it involves our possessing a natural right, within limits, to
determine for ourselves what further goods and services we provide for others,
and under what conditions. Now a failure through deceit to deliver a clearly
insisted on and acknowledged reciprocation to some service given by us is as
immediately recognizable a violation of this right as is the use of outright force
to extract that service from us without return. A function of the practice of
making and keeping promises is not to create that right, but to recognize and
respect it.21
So one criticism of Humes theory of promising is this. Hume, like Pufendorf,
is concerned to occupy a position in moral theory that is not Hobbesian that
does not leave all our obligations towards others the products of agreement or
convention. In particular, there are pre-conventional standards of humanity and
benevolence towards others that preclude various forms of coercive interference
in their lives. But Hume wants at the same time to maintain that the morality of
fidelity to promises in the context of exchange is wholly artificial, and generated
by practices originally directed simply to the furtherance of self-interest. Yet
surely, it is rights under natural morality that the practice of fidelity to promises
protects. For if people had no natural right not to be defrauded of their goods
and services, why should they possess any natural right not to be coerced into
providing them just for the whim and convenience of another? If even when
unaccompanied by any further injury, such coercion is wrong in itself, and
naturally wrong, then so must be the fraud. The coercion and the fraud are
both wrong in the same way as an intrusion on the agents natural liberty to
determine what he does with his own.
Hume takes our existing practice of making and keeping promises to have
arisen in its present form to facilitate self-interested exchanges; and he claims
that this present form has then created and shaped moral obligation in respect of
promises. But of course if promising had all along been about the facilitation of
self-interested exchange, convention and practice in relation to promising might
well have taken a different form. The convention might not just have been to
keep promises at the risk of not being trusted again should they be broken. The
convention might also have been that promise breakers definitely should not be
trusted again, at least for some roughly specified interval. Such a convention
would certainly be a highly effective facilitator of reciprocal exchange. For there
would be the less incentive for any promise breaking, and so people could enter
into and perform first under agreements with the greater confidence of a return.
And on the Humean view if such a convention did come into existence, and
everyone really did benefit from the strict adherence to it, it would be adherence
to this convention that would come to count as morally obligatory. And then of
course there would be two moral obligations in relation to promises on the
promise maker to deliver, and on third parties and the promisee never to let the
promise maker get away with failing to play his part.
 Promising and Obligation / 403

But this hypothetical convention, no matter how useful a facilitator of

mutually advantageous exchange it might be, has nothing to do with promising
as we ordinarily understand it. Indeed it seems absurdly morally oppressive on
promisees and third parties. On our understanding, in relation to promises only
their maker can actually be obligated to doing what he promised. Others
are at perfect liberty to trust him again should they so choose. But that is
because what we are dealing with is not a convention serving simply to facilitate
exchanges among the self-interested. We are dealing with a practice that asserts
and respects preexisting rights. And only the promise breaker has actually done
wrong by denying anyone their right the right to determine the conditions
under which they provide services and goods to others. Indeed the true basis of
the promisees right to the return promised him his liberty to determine for
himself what he does for others and on what conditions precisely involves, by
its very nature, a right not after all to insist on that promised return.
In fact the fundamental implausibility of Humes theory becomes even
more evident when we examine social reality, and note how very different
from each other are the actual practices involved in promising and property
two parts of morality and social practice that Hume himself repeatedly likens
and seeks theoretically to assimilate.22 The institution of property does indeed
seem to involve a carefully maintained set of conventions of just the kind that
Humes theory would require. People do generally and reliably adhere to rules
determining ownership of objects; and are reliably penalised in various ways if
they are ever caught out in breach of those rules. But there is no analogous and
equally reliably maintained convention of doing what one has promised with a
real risk of being penalised should one ever break ones word. You promise me
that in return for getting into my edited collection, you will supply the paper by
month end. For no sufficient reason, you break your word but I exercise my
right to forgive the breach and offer an extension to the deadline, which again
you promise to meet. And so it goes. You repeatedly fail to act as promised and
I repeatedly fail to penalise you for your failure. In my experience this sort of
thing can go on for several years. There is nothing recognisable in this case as
observance of Humes promising convention. The Humean convention of doing
what one has promised at the risk of being penalised if one does not is in many
areas of life, to a very large degree, a fiction. If the rights of promisees, which
those promisees have the option of not insisting on, are real, they cannot depend
on such a conventions being generally established and maintained.
But there is now a problem; and this is a problem which faces not only Hume
but also the believer in a natural right to impose conditions on ones services
and provisions to others. This is the phenomenon of gratuitous promises, made
without expectation of return, in the context not of mutually self-interested
exchange, but out of simple charity or friendship.
Here I promise to someone in need, or to a friend, that I will help them,
without any expectation of return. So I am neither asserting nor recognizing
anyones right to impose conditions on their services to me or to others. I am
404 / Thomas Pink

simply committing myself to provide such services gratuitously. And do not such
promises oblige? But if I do wrong in breaking them, this is certainly not because
I have breached the promisees right to determine the conditions under which
they provide goods and services to me.
Hume, like Pufendorf before him, assumes that the practice of making and
keeping promises is expressive of self-interest; it exists to enable self-interest to
be pursued in a more efficient manner. But many promises are expressions of
love or kindness and sheer fellow-feeling. It is not plausible that such promises
made out of kindness to friends or those in need do not oblige morally, or are
somehow peripheral to the practice of promising, or are mere echoes of a central
practice of making and keeping promises in exchange for some return. To make a
promise to a great friend, and to make it just out of friendship, is a very plausible
way of obligating oneself to that friend. People who break such promises made
to friends are very intuitively wronging them.
It may of course be that friendship brings with it prior obligations of an
imperfect sort obligations to do some things or other for friends.23 But these
initial obligations are imperfect. I am under no obligation to do any particular
thing. Gratuitous promises change this situation. They effect the crystallization
of these imperfect obligations into definite, perfect obligations to do this rather
than that to perform precisely the action promised rather than any other. And
this obviously presents us with a deep difficulty. For the theory of promissory
obligation we have so far developed applies only in the context of exchange,
appealing directly it does to a right to determine the conditions under which we
make goods and services available to others.

6. Grotius, transference theory and contract

Some Protestant natural lawyers, such as Grotius, rather than founding prop-
erty on promising as Pufendorf did, took property, or at least quasi-ownership
rights over ones own self and labour, to be part of natural morality. They then
explained the obligation to keep promises by assimilating the making of a promise
to a form of property transference. On this view, since we naturally have own-
ership or quasi-ownership rights over our own labour and powers, by promising
we can transfer these rights to others. And it is in virtue of transferring these
rights to others that we obligate ourselves to them to act as we have promised:

There is the further fact that ownership of property can be transferred by an

act of will which is sufficiently manifest, as we have said above. Why then, since
we have equally right over our actions and over our property, may there not be
transferred to a person also . . . the right to do something?24

Can the power to oblige oneself through promising be made sense of in these
terms? Such an account, if defensible, would certainly take in gratuitous promises,
 Promising and Obligation / 405

as well as promises involved in exchange. But the obligation attaching to promises

seems not to work in this way.
Suppose I promise to X to do nothing but work all day tomorrow on his
garden; and then, without revealing this earlier promise, I go on to promise
exactly the same thing to Y. Whether I am making these promises gratuitously,
or in each case I am making the promises as parts of some exchange, as a
return for things done for me by each of X and Y, it seems that through so
promising I can obligate myself to each. Each of X and Y gains a right to my
labour tomorrow on their garden. But how can the transfer theory explain this?
According to the transfer theory, any ownership right over my labour or liberty
in relation to gardening activities tomorrow has already been transferred to X.
So what is there left to transfer to Y?
This criticism attaches to any theory that explains the obligation on me
as promisor to keep my promise and the right of a promisee to that promise
being kept in terms of the transference of something peculiar to me in relation
to my action rights, ownership, authority to the promisee.25 For since I
have already transferred away the right or ownership or authority over what I
do tomorrow that could have generated an obligation to Y to garden for him,
according to the transfer theory Y has only one ground of complaint against
me: that I have fraudulently misrepresented myself as being in a position to
obligate myself to him to act as promised. And in fact he has this ground of
complaint whether or not I fulfill my promise to him. But that seems absurd.
Surely Y would feel himself aggrieved and wronged only if I failed to deliver on
my promise precisely because it was to doing that that I had obligated and
committed myself. It is that failure he would want me to make up to him, as the
wrong done to him, not some fraudulent misrepresentation as to the availability
and transfer of a right.
And this reminds us of the lesson of the doctor-patient example with
which we began. The promisee need not be, in most everyday cases will not be,
concerned with receiving rights over the promisor.26 The promisees first concern
will in general not be with whether the promisor is managing to put himself
under an obligation. The promisees immediate understanding of a promise is as
involving an offer not any ordinary offer, but still an offer; and the offer is
of the action promised, not of some moral obligation to perform it. What the
promisee expects, then, is delivery on this offer. And it is only when delivery fails
to occur that the promisee will then start thinking about having been wronged
precisely by that non-delivery.
In our example since I cannot keep my promise to both X and Y, only one
of the promisees can obtain performance of the action promised. And it looks
as though it is hardly arbitrary which promisee this should be. Other things at
least being equal, I should do the garden of X rather than Y, since it was to X
that I first promised my help. But of course this does not show that in thereafter
making the same promise to Y, Y acquired no right to the same service as X.
Rather, when I have a like obligation to both X and Y, and it is or becomes
406 / Thomas Pink

impossible to meet both obligations, then other things being equal we do allow
priority by whom was the right acquired first to decide which obligation
should be met. But this does not show that the other did not possess the same
right too. For example, Ys right and my obligation to supply it still exists, and
immediately determines what I should have to do were X, for some reason, to
release me from my promise to him. Obviously I should then have to do Ys
garden, because my promise to Y had already and directly given Y a right to
that, and there would no longer be any prior commitment to X standing in the
way. Again even if X does not release me from my promise to him, Ys right
and my obligation to supply it still exists to determine how I shall need to make
things up to Y if I do garden for X. What has to be made up to Y is clearly my
failure to do Ys garden, the action promised. For it was to the performance of
that very action promised that Y acquired a right, just as did X beforehand.
Y, in regarding himself as having a right to my performance of the action
promised, is treating the promise as a mode of commitment a commitment
to deliver on my promise. And commitments and the obligations associated
with them are quite different from transfers. For while one cannot over-transfer,
one certainly can over-commit. And this seems true whether a promise is made
gratuitously, or whether it is made in the course of some exchange. I can over-
commit by a series of promises made as a favour. But I can also over-commit by
entering into multiple agreements to exchange goods and services, dishonestly or
recklessly making a series of offers of return that cannot be honoured all together.
There are cases of promise or agreement where the transfer model might
apply. These are usually cases where the agreement constitutes a transfer of some
property title, and where once one such agreement has been made in proper
form, all subsequent agreements by the initial transferor purporting to transfer
the same title are by the very fact of the first invalidated. Certain forms of
contract in a housing market might constitute just such forms of title transfer.
Arguably, an exchange of vows in marriage could also be understood take the
same form a form in which each party transfers themselves to the other,
thereby (at least in the absence of any subsequent cancellation of the contract)
invalidating any further such exchange of vows either party enters into with a
third. Contrast the exchange of vows in actual marriage with a prior promise
to marry, which simply commits the promisor to a future transfer, and where
over-commitment is possible.

7. Gratuitous promises and liberty

We have yet then to arrive at theory of promises that are gratuitous that
are made not as part of an exchange but, it seems, for nothing in return. Such
promises may be made out of sheer altruism and generosity or out of friendship.
It is important that such promises are very frequently made and they can be as
obligatory as any.
 Promising and Obligation / 407

It might be tempting to include such promises in our theory thus. What are
the moral implications of the existence of a right to determine, within limits,
the conditions under which we make our goods and services available to others?
We have viewed such a right as constituting a certain natural liberty: within the
limits set by our obligations to others, we have a right to determine for ourselves
what we do, and especially how we dispose of our selves and our resources and
goods. The infliction on us of coercion and fraud by others is wrong because an
assault on this liberty. But if we have this liberty, can we not voluntarily lay it
down? Can we not obligate ourselves to others at will? If so our ability to obligate
and commit ourselves through gratuitous promises is in the end related to our
capacity to obligate ourselves through promises in the context of exchange. In
each case the obligations involve the liberty of the individual whether the
surrender of that liberty by the promisor, or a duty to respect that liberty in a
promisee.
This proposed resolution is attractive. But it is, I suggest, misconceived.
There may, as we have indeed supposed, be such a liberty. But, as we are now
about to see, we may not be able to lay it down at will, obligating ourselves just
through expressing our intention to do so. And secondly, how do we incur the
obligation? What is involved in laying down our liberty in these cases, such that
we are left with an obligation to someone else?
In the context of exchanges we can see what explains the loss of liberty when
through promising we lose it. The loss of our liberty may be explained by our
duty to respect that of another, and the conditions he has placed on those of
his services that we have chosen to accept. But no such explanation is available
to cover gratuitous promises. There the obligations are not incurred to respect
any conditions placed on what we have received. Nor can the laying down of
ones liberty involve any transfer of rights to others, for the reasons we have seen.
But if laying down ones liberty to others does not involve transferring rights to
them, what does it involve when gratuitous promises are in question? Clearly,
to lay down ones liberty involves coming to have an obligation to those others,
where one was unbound by any obligation previously. But how then does the
obligation arise? No story has been given, and the appeal to liberty here does no
explanatory work, but merely asserts that we have somehow a power to
obligate ourselves.
Notice that our power to obligate ourselves through gratuitous promising
is not evidently unlimited. It certainly seems not to display any very simple
power to lay down our liberty or obligate ourselves at will. For not all gratuitous
promises obligate the promisor with equal obviousness, even when the promised
service is accepted by the promisee and even when the promise is accompanied
by a genuine intention on the part of the promisor to obligate himself. And this
is so even when there is no coercion, fraud, or immorality in what is promised,
nor any harm to the promisee.
Suppose in the financial district I approach a complete stranger in the street,
someone entirely unconnected to me, who is prosperously there employed and
408 / Thomas Pink

in no obvious need of funds. Out of my own whim, and specifically in order

to obligate myself being so obligated would be interesting, I think, and so,
pursuing this interest, I really do intend to bring this state of obligation about
I promise to give him 20 within half an hour, and he accepts the promise of the
money. (Why should he not accept? he may not really need the money, but
every little helps, and I, as a clear eccentric, might just deliver on my promise.)
Am I obliged to deliver the money? If I fail to hand the money over, will I
have actually wronged the promisee? It seems at least debatable. If the moral
obligation does exist at all, it is not obviously a very serious one. Even if the
promisee would be wronged by my failure to deliver on my promise, it is not
clear that the wrong would be significant. And it is at least arguable that no
binding obligation exists at all. Yet if I did have the power to obligate myself at
will through promising, then given my genuine intention to obligate myself in
this case, surely my obligation to act as promised would be as clear in this case
as in any?
Compare other examples of gratuitous promising that clearly are obligation-
inducing. Consider, for example, a case where I promise a great friend that I will
attend the exhibition of his latest artwork. (Note the difference if the friend is
not so great. Perhaps the obligation would be less serious because of that a
point to which I shall return.) Or consider a case where I promise a favour to
a social acquaintance or a work colleague. Or consider a case where I promise
a stranger in obvious need that I will help him, with money or in some other
specific way. In all these cases the promises are similarly gratuitous, but clearly do
oblige. Breach would much more plausibly constitute a significant wrong done
to the promisee. Yet the difference between these cases and the first has nothing
to do with some supposed power on my part to give up my liberty or to obligate
myself at will a power which if present at all would be present and operative
in all three cases equally.
Certain social contexts such as acquaintance, shared employment, friend-
ship, especially serious friendship, or need in a stranger these make the
obligating nature of gratuitous promising particularly clear, and as intelligible
as in any case of exchange. Clearly something else is generating the obligation
beyond a will on my part to obligate myself. And, remember, as the case of the
doctor and his patient showed, even in sincere promising such a will to obligate
oneself need not be present anyway.

8. Promises as invitations to trust

I shall now argue that gratuitous promises involve a distinctive way of

relating oneself to another. And I think this mode is as much present in
factive promises or promises that, as in performance promises or promises to.
Recognizing and understanding this form of relation will enable us to understand
how gratuitous promises to act generate moral obligations to act as promised.
 Promising and Obligation / 409

But it will also uncover what is common to both promises to and promises that,
and explain why we see and speak of both cases as equally cases of promising.
The mode of relation involves, first, the promisor making an offer to the
promisee of information in the case of promising that and of future action or
performance in the case of promising to. In the case of the information provided
in promising that, what is offered the conveyance of information or a truth
is provided simultaneously, if it is to be provided at all. The very act of promising
will have provided it, and all the promisee or recipient can do is fail to believe.
With promising to things are different, and the offer is not yet delivered, and so
there is room for the promisee to refuse what is offered before delivery. If the
promisee accepts, or at least does not refuse, the sincere promisor will thereafter
become motivationally committed to deliver. That is, he will remain motivated
to deliver what has been offered subject to the promisees continued wish to
receive it.
What else is in common to the two cases besides an offer? In addition to
the offer there is an invitation to trust the offeror in relation to his offer and
its genuineness. Trust here involves two connected elements. It involves not only
relying on the promisor to deliver, but also obtaining comfort and reassurance
from the promisor in relation to the delivery. More specifically the promisee is
invited to take a twofold trust in the offeror. The promisee is invited to rely on,
and to take comfort and reassurance from, both the promisors motivation and
his capacity to deliver.
(1) Offer (of information or of action)

+
(2) Invitation to trust in the offeror:

specifically in

- the offeror's motivation

to deliver what is offered
- the offeror's capacity

Figure 1. The common essence of promising.

In the case of factive promising that the promisee is invited to trust, first,
in the promisors motivation to tell the truth in his honesty. Secondly,
the promisee is invited to trust in the promisors epistemological capacity or
reliability in his ability to get his assertion right. Notice this invitation to trust
is not part of everyday assertion. For whilst in the context of serious conversation
assertors are supposed to assert what they really do believe, they do not thereby,
just through asserting, actually invite conversational partners to put their trust
in the sincerity of the assertor. Still less are conversational partners invited, just
through the act of assertion, to put their trust in the epistemological capacity or
reliability of the assertor.
410 / Thomas Pink

Not only is the addressee not necessarily invited to trust in or rely on the
assertors sincerity or reliability; there are contexts of serious assertion in which
such trust or reliance would be uncalled for or even inappropriate. Thus in a
debate or argument, the truth of what is asserted may well be argued for simply
on the basis of the supposedly evident truth of other propositions asserted,
and not on the basis of any appeal to the assertors own sincerity or epistemic
competence. Whereas factive promising is quite different. Someone who insists,
in the face of scepticism whether something that they witnessed really happened:
I promise you, it did, I saw it happen with my own eyes, is exactly inviting trust
both in their own truthful motivation and in their capacity to get what really
happened right.
In the case of promising to, the invitation to trust is again twofold. First, as
before, the promisee is invited to trust in the promisors motivation in this
case in their continuing motivation to deliver on the offer for as long as the
promisee wishes that they should. Secondly they are again invited to trust in
the promisees capacity in this case in the promisees ability to provide what
they have offered. The second invitation and its object is just as important as
the first. When I promise to do something for you, I am inviting you to trust
not only in my willingness to do it, but in my implied assurance of my actual
ability to do it. Which is why it seems so dishonest to make promises which, no
matter how motivated one may be to act as promised, one doubts or disbelieves
ones own capacity to deliver. Those who promise that they will pay the rent by
Friday may be very motivated to pay as promised should they find the funds
(which they may be very motivated to do as well); but they do not promise
honestly if they doubt or disbelieve that by then they will actually have the funds
required.
But this account suggests that, far from being something peripheral and
irrelevant to any account of promising to, promising that embodies a common
essence and structure found in promising generally. In each case the commonality
is the conjunction of an offer with an invitation to a twofold trust in the offeror
in his motivation and in his capacity to deliver what is offered.
We now see why Hume was wrong to think that only thoughts about
obligation can motivate us to keep a promise. We can be motivated by a far
less philosophical and far less moralistic thought. We can be motivated, as the
doctor was in relation to his patient, by the simple thought that we have given
our word. And now we see what giving ones word comes to something that, as
I shall now suggest, is commonly a basis of obligation, but which in itself comes
to something distinct from mere obligatoriness, and which can intelligibly figure
as a motivating thought apart from it. In giving his word, the doctor has invited
the patient to trust in him; and it is this conception of his relation to the patient
which can on its own be what is motivating him to deliver on his promise. And
that invitation to trust chimes with what the patient promisee wanted all along:
the receipt not of an obligation in their favour, but of an offer with assurance of
its delivery an offer in which the promisee can sensibly take trust.
 Promising and Obligation / 411

On this account it is the invitation to trust that explains the promissory

obligation in such cases where a gratuitous promise does oblige. The question
when do gratuitous promises oblige comes down to this: under what conditions
does inviting someone to trust you to do something oblige you to do it? And
restating the question in these terms really is explanatory. The appeal to an
invitation to trust is not circular, a mere verbal variation on promise. For
the idea of trustworthiness gives us independent purchase on when gratuitous
promises give rise to obligations and when they do not, or at least not to
obligations that are serious and clear.
For example, the obligation to act as promised most convincingly and
compellingly arises in those cases where the trustworthiness of the promisor
most clearly matters to the promisee. And the promisors trustworthiness will
certainly matter in a case of need where the promisee is vulnerable, and needs
to entrust themselves to others. Equally it will matter when the promisor is
an acquaintance or colleague or friend of the promisee. And in the case of a
friend, it will matter more the greater the friendship involved. Which is, other
things being equal, the greater the friend, the greater the wrong done by breaking
promises made to them; the obligation attached to delivery becomes more serious
with the friendship. Whereas the promise of 20 to the random stranger in no
financial need is quite different. Here we saw that the existence of a real and
binding moral obligation to deliver the money to the stranger is very much more
arguable. Even if the obligation does exist, it is not obvious that the stranger
would be greatly wronged by non-delivery. Our theory clearly explains why the
obligation is plausibly less serious and why even its very existence is at least
debatable. For in this case it really is debatable how far the trustworthiness of
the promisor in relation to his offer matters to the promisee. Certainly it is hard
to see the trustworthiness of the promisor mattering very much; which is why no
matter how determined and intent the promisor might be to obligate himself, it
is so much harder to see a really serious moral obligation here.
Notice, in particular, that the standard account of what promisors intend
to communicate the account given by Finnis, Owens and Raz does
nothing to make promissory obligation plausible, and does so precisely because
the interpretation it gives of promising has nothing to do with inviting trust.
According to the standard account, when I make a promise, I am deliberately
expressing an intention to obligate myself to you. But of course one can do
that simply by explicitly asserting ones possession of that very intention. To
the prosperous stranger in the financial district I could just say, It is my intention
that I now be under an obligation to you to pay you 20 within half an hour. But
such a linguistic performance taken on its own is hard to recognize as a normal
promise. And the reason why is clear by now. Such a locution has nothing to
do with inviting trust. Indeed it would be strictly consistent to combine such a
locution which, after all, is about my obligations to you, rather than about my
trustworthiness to you, with an actual disinvitation to trust: I intend to place
myself under an obligation to you to pay you 20, but dont trust me to deliver
412 / Thomas Pink

on it. But how could such a locution ever oblige as gratuitous promises do,
and what point would making it have? Since in gratuitous promising it is an
invitation to trust which is essential to generating the obligation, it is quite vain
to seek to impose a promissory obligation on oneself as promisor while explicitly
discouraging trust.
Not that trust need actually be given by the promisee for promises to oblige.
It is perfectly possible for a promisee to be sceptical about a promisor without
that scepticism in any way removing the promisors obligation to deliver. This is
therefore not a variation on the expectational theory of promissory obligation,
where the obligation to keep a promise is explained in terms of an obligation
not to disappoint deliberately raised expectations of delivery.27 The expectational
theory is not credible, in that promises can perfectly well oblige even when the
promisee remains sceptical of actual delivery, and the promise has done nothing
to raise those expectations. So what creates the obligation on the promisor cannot
be the fact that he is actually trusted in by someone. Actual trust does not of
itself obligate in any case. The person trusted might never have intended to receive
such trust, or they might even have sought to discourage it. What generates the
obligation is the fact that the trust, whether actually given or not, was deliberately
invited. For deliberately to invite trust, and then to betray that trust for no good
reason, and to do so in circumstances where ones trustworthiness clearly matters
to the person betrayed, is to show them contempt. And it is that contempt that
explains the peculiar sense of wrong felt by the victims of broken promises. Aside
from any inconvenience caused by disappointed expectations and perhaps the
promisees expectations were never very high there will be not merely a sense of
having been wronged, but underlying this sense of having been wronged a feeling
of having been trifled with. One has been treated with a degree of contempt; and
for that reason one has been treated wrongly. By not immediately characterizing
promising as mode of voluntary self-obligation, we have managed to explain why
the victims of broken promises should feel wronged, and why the wrong is felt
so personally.
Notice that it is perfectly possible effectively to make a promise without using
expressions such as I promise. For one can perfectly well invite someone to trust
one to do something, or invite someone to trust one in relation to ones assertion
of a fact, without actually using words such as I promise to or I promise
you that. But where performance promises are in question, and the promisee
has a particular need for reassurance that the future action promised really
will be performed, a promisor may sometimes go on to use such expressions,
or promisees may insist on their use, as a further stage in the expression of
commitment even once an invitation to trust has already been delivered. Thus a
promisor may say: Trust me, Ill be there and thats a promise. Or a promisee
may on hearing the words, Trust me, Ill be there, ask: Was that a promise? or
Is that a promise?28
This might suggest to some that to utter the words I promise really is to
do something distinct from and going beyond issuing a mere invitation to trust.
 Promising and Obligation / 413

On this view, what these cases show is that to add And thats a promise really
is to express an intention to obligate oneself; and promisees insist on the use of
such expressions even once an invitation to trust has already been made for one
reason only in order to ensure for themselves the receipt of a moral obligation
in their favour where none would otherwise have existed. In which case, it might
be concluded, we should move back to the standard account of promising and
promissory obligation that we began by rejecting the account of promising as
the expression of an intention to obligate oneself, an expression of intention that
thereby mysteriously brings about the obligation supposedly intended.
But is this reading really plausible? On this view, since inviting trust is one
thing, but promising is quite another, one could sensibly issue a clear and explicit
invitation to trust while disavowing any promise: Dont worry, trust me, I really
will be there but Im not promising. Ones motive in saying this would be
clearly and publicly to avoid an obligation to do it an obligation that, on
this view, only actually making a promise would incur. But in reality such an
expression is really very odd. We would never, in the ordinary course of things,
clearly and emphatically invite someone to trust us that we will do something, and
immediately deny that we are promising to do it. The disavowal of any promise
would surely be heard, rather, as an eccentric withdrawal of the invitation to
trust. The addressee would certainly no longer be inclined to place much trust in
the thing being done for as long as they continued to wish it done.
There is of course a way to make sense of the combination of an invitation
to trust with an explicit refusal to promise. Suppose we are dealing with some
special legal context where the utterance of certain words such as I promise or I
contract creates a legally recognised contract, with rights enforceable under law
attached to it, that might well not otherwise exist. Then, of course, there would
be some clear intelligibility to inviting trust while still preferring unambiguously
to avoid any such legally enforceable relation. Certainly, Trust me, I will do it,
but Im not entering into any contract is an entirely intelligible thing to say. But
then the function in such a context of I contract or I promise would not be
to express any intention to incur a moral obligation. Rather its function would
simply be to trigger a purely legal or contractual obligation, the moral force of
which might be very debatable, whether this purely legal obligation was intended
or merely foreseen. And use of the phrase I promise does not usually have this
specifically legal function.
Ordinarily, clearly and emphatically to invite someone to trust us that we
will do something just is, in effect, to promise them that we will do it, and will
reliably be understood as such. If, after someones trust has been clearly and
emphatically invited Trust me, I really will do it the thing is not done,
a claim made in justification of not doing it to the effect that I never actually
promised to is unlikely to be heard with any patience. A real moral obligation
to deliver comes with the invitation to trust; and one who issues an invitation to
trust will be held bound by an obligation to deliver whether or not they actually
used the word I promise and Thats a promise. They will, in other words, be
414 / Thomas Pink

treated as any promisor who has made a promise; and if they fail to deliver, they
will be regarded as any promise-breaker.
If a person whose trust is being invited already has a moral obligation in
their favour, just by virtue of the fact that their trust has been invited, what are
they seeking in asking Is that a promise? or Was that a promise? What they
are seeking is not a moral obligation, which they may indeed possess already if
any such obligation arises at all, but rather explicit acknowledgment from the
promisor that through inviting trust a promise was being made and an obligation
was incurred. That is, the function of I promise and thats a promise is not
to express an intention to obligate oneself an intention that, as weve seen, a
sincere user of such expressions, such as the doctor who honestly says I promise
Ill be there in trying to comfort and reassure his patient, need not possess.
Rather the use of such expressions is explicitly to acknowledge that a serious
invitation to trust really is being made serious both in that its making really is
intended by the promisor, and really does matter to the promisee, and matter to
the point of obligating the promisor. Moreover emphasis is further given to the
fact that the promisors offer and his motivation to deliver on it really is subject
to the promisors continuing wish to receive it.
For I can trust someone to do something, but to do it without any reference
to my wishes. For example, I can trust them to do it whatever, or to do it subject
to their continuing themselves to think that doing it would be in everyones
interest, or subject to a variety of other conditions. But in promising the promisee
is invited not just to trust in an actions being performed, but in the agents
performance of it and motivation to perform being specifically conditional on
the promisees wish that that the action be performed. The action is being offered
to the promisee, as something that the promisee can refuse, or accept; but which,
if he accepts, will be performed unless and until the promisee ceases to desire
the actions performance and releases the promisor from his promise. Such a
condition is typically understood by both parties in invitations of the form:
Trust me, Ill be there, and is certainly understood in so far as such invitations
to trust are heard as promises. The function of And thats a promise is, then,
formally to confirm such an understanding.
To make my invitation, its seriousness and its reference to the promisees
wishes clear, I dont have to use the words And thats promise. But using those
words or like expressions is one way of making it quite clear what I am doing.
And the promisees interest in hearing such expressions now becomes obvious.
It is not that they are essential to generating an obligation, which may anyway
already have arisen, and which in itself promisees often dont much want. What
promisees seek from promisors, rather, is security and reassurance. And this is
the point of And thats a promise. The promisors utterance of And thats a
promise makes it clear to all parties that the promisor understands very well
both what he is doing, and its personal and moral significance to the promisee.
It is made very clear that the promisor is giving his word, and that he fully
realizes that he is doing this and that this matters to the promisee. At least in
 Promising and Obligation / 415

the absence of independent evidence of the promisors dishonesty or incapacity,

this all the more enables the promisee sensibly to put their trust in the promisor,
something which the promisee wants to be able to do.
Of course using the phrase And thats a promise may well increase the
obligation on the promisor even if one would have arisen anyway. For in so far
as it plausibly increases the level of trust invited, so too it adds to the contempt
shown to the promisee, and so to the wrong done to the promisee, if for no good
reason the promise is subsequently broken. Hence one can further understand
why the false impression may have originally arisen that what we have here in
the use of terms such as I promise is a quasi-legislative act an act that quasi-
legislates obligations into existence just through the expression of an intention
that those obligations exist. For certainly the explicit use of terms such as I
promise may increase a promisors obligation to the promisee not by creating
a new obligation with a different basis to any existing before, but rather by
reinforcing the original basis of the obligation, which all along lies in the activity
of inviting someones trust.
Given that explicit use of the expression I promise does serve to acknowl-
edge the creation of an obligation, suspicious and mistrustful promisees have an
evident interest in insisting on its use. For in so far as the expression serves to
highlight one central outcome in many contexts of inviting trust the creation of
an obligation to deliver on the offer and thereby adds to that obligation, use of
that expression binds the promisor to the promisee in a public and unambiguous
way. It is not so much that an obligation exists at all; for that obligation might
have existed without the words. Rather, through the use of this expression, it
is now explicitly acknowledged by the promisor what has been done: that the
promisees trust has been invited so as to obligate the promisor to deliver on his
offer. That means that if the promisor has any interest in not breaching or at
least in not being seen to breach an obligation to the promisor, that interest will
motivate him to act as promised. And third parties who are inclined to enforce
such obligations, or to apply social pressure on those who breach them, will then
be more sure to act in this particular case. But the source of the obligation is
all along the same, and independent of the use of such expressions: it lies in the
issuance of an invitation to trust in a context where the trustworthiness of the
promisor is of sufficient significance to the promisee to obligate delivery.
Notice that alongside the use of the expression I promise to make a promise,
there is an ironic use of it to issue a threat as in If you trespass on my property
again, I promise you Ill shoot you dead. Here there is no offer of an action
promised as some kind of benefit to the promisee which they might choose to
accept; nor is there an obligation on the offeror to perform the action promised
should the offer be accepted. But of course, one could make the same threat in
the same ironic manner by using the vocabulary of inviting trust: If you trespass
on my property again, trust me, Ill shoot you dead. And it is plain in either
case why the invitation is ironic, and why no genuine promise is being made.
For the addressee is hardly being invited to take comfort and reassurance from
416 / Thomas Pink

the interlocutors motivation and capacity to deliver on the promise. Rather the
reverse is plainly true it is fear and dread that are being invited.

9. The morality of promising and of promise keeping

We have then two quite distinct bases for the obligation to keep promises.
One lies in peoples right to control the conditions under which they provide
goods and services to others. Here the basis of the obligation to keep promises
lies in a respect for liberty, and the failure to keep promises to others is akin to
coercion of them. The other foundation for the obligation to keep promises lies
in something rather different a duty to respect an attachment of people to
ourselves such that our trustworthiness matters to them, whether as those made
dependent on others by need, or whether just as our neighbours or our friends.
We should employ promises to provide genuine assurance and deliver on it, not
to trifle with those to whom assurance matters; and here the failure to keep
promises is wrong because it belittles others, and is form of unkindness to them.
So one and the same phenomenon of promising unites two contrasting aspects
of our humanity: the liberty and moral independence of each individual, and the
practical and emotional attachment of individuals to each other.
Each basis of promissory obligation seems to leave the moral obligation to
keep promises an obligation that is, in Pufendorf and Humes terms, natural
rather than artificial. That is, the rights on the part of the promisee to delivery
on the promise that are at stake in each case seem pre-conventional. There is
no need for some existing practice of promise-making and keeping to exist for
one to possess a right to control the conditions under which one does things for
others. Similarly no conventional practice is required to make intelligible peoples
general need to be able to trust others, and for that need to be respected by those
who deliberately invite trust.
This leaves the rights of promisees and the obligation of promisors to respect
them importantly unlike the rights of property holders. For it is very intuitive
that, just as Hume supposed, the right of a property holder to a particular good
that he owns and the moral obligation of others to respect that right do depend
on a developed system of conventions determining ownership conventions
partly fixed by formal legal statute and partly found in informal custom. In the
case of property, conventions fix ownership rights, and so are presupposed by any
moral obligation to respect a given individuals ownership of a particular good.
But property is not the same as promising, and Humes attempt to assimilate the
natural phenomenon of promising to being a supposed analogue of the artificial
institution of property was mistaken.
But while many promissory rights and obligations do have a natural basis, so
that many are fixed preconventionally, some may still be artificial. For promising
is a practice that is given some degree of legal recognition and enforcement
in the form of legal contract. Here legal statute or legal custom will recognize
 Promising and Obligation / 417

certain promises and agreements as contractual, and establish certain legal rights
and obligations in relation them as enforceable through legal process. And here
it is arguable that our moral obligation to respect laws generally will morally
oblige us to respect such legal rights and obligations. Here the immediate basis
of our moral obligation to act as promised qua fulfil our contractual obligation
may lie not in any pre-legal, natural obligation to respect the liberty of another,
or to deliver on an invitation to trust. For we may not have invited any trust.
And perhaps in the contractual exchange the counterparty was not morally at
liberty not to do what he has done for us. Here the immediate basis of our moral
obligation to respect the contract may indeed consist in the simple existence of
a certain contract, and so in a use of certain words or deeds by each party to
constitute that contract.
So just as there are convention-dependent property rights, equally there are
convention-dependent contractual rights to receipt of goods and services. But
that does not mean that the rights of promisees in general are convention-
dependent, or that even in non-legal contexts, it is convention alone that
determines or fixes the rights of promisees and so any moral obligation on
the part of promisors to meet them.
In the case of gratuitous promises there may be some temptation to play-act
as if there were a quasi-contractual significance attaching to the use of words
such as And thats a promise. Children especially may treat whether in inviting
trust they or a parent used words such as I promise as if it did signify a
sort of contract as if, that is, there really were a special moral obligation to
keep the promise based just on the use of those particular words. And that is
because children may actually often be involved, along with their adult guardians,
in quasi-legal games or institutions of promise-making and promise-keeping,
in which the specific use of certain words does engage entirely local family
conventions of penalisation or compensation for non-performance. Here the
function of the words I promise may be precisely to engage those structures; and
then it may matter that even if one may have invited trust, one did not actually
use those words. But most adult promising is simply not like this, and is not
plausibly to be modelled on family games of discipline and cooperation played
with children. If obligations do arise in gratuitous promises made by adults, their
basis seems very much to lie in the fact that trust was invited, and not in the use
of certain words considered apart from such an invitation. Any adult who clearly
and unmistakably invites trust and then seeks to evade what they have done by
insisting that they never actually used the words I promise, would be reducing
the ethical to the quasi-legality of a childs morality of black marks and naughty
steps. If the use of words such as And thats a promise does have any significance
in extra-legal contexts, it lies as we have seen both in rendering the fact of
an invitation to trust and its exact terms unambiguous, and in deepening the level
of trust invited, and so the wrong done to the promisee if the promise is broken.
We have seen that not all promises are involved in some form of exchange
that invokes the duty to respect the liberty of others. Some promises seem to
418 / Thomas Pink

oblige purely through constituting invitations to trust. On the other hand there
are clear cases of contract and agreement where the opposite seems true; where
the element of invited trust and the duties flowing from such an invitation seem
not to be significant. If I take out a credit card, I agree and contract to pay off
the debts incurred under it. But does my trustworthiness matter to the credit
company, and am I even inviting them to trust me to repay? The card company
is not seeking borrowers each of which it can individually trust, but simply wants
to amass a vast credit book that achieves in total an ideal balance of risk and
return. Too uniformly reliable a pool of card holders, and though there will be
no defaults, their borrowings and the income generated on them will be too low.
There is nothing, then, in the card companys relation to me analogous that of
one awaiting the return of a sum loaned to a friend or neighbour to help them
get by, and to whom the trustworthiness of that individual borrower does matter,
and not simply because they would like the money back. Some might insist that I
am not standing as a genuine promisor to the card company; that in the absence
of an invitation to trust, I agree to repay what I owe but do not really promise.
But we could as well admit that we have here a case of promissory obligation
rooted in the liberty of the promisee, rather than in their attachment to us.
It would in any case be quite wrong to imagine a rigid distinction between,
on the one hand, gratuitous promises that engage a respect for others as those
to whom our trustworthiness matters and, on the other, contracts or promises in
relation to exchange that engage a respect for their liberty. For exchanges between
friends can engage both forms of respect, as can many commercial transactions
where counterparties in commerce do also meet as at least acquaintances or as
neighbours. The rigid distinction between a sphere of benevolence or love and a
sphere of justice that we find in Pufendorf or Hume is simply not credible.
There is no such rigid distinction between the spheres of justice and of love
because it is the same human beings who combine the possession of moral liberty
from their fellows with an attachment to them as neighbours or as friends or as
sources of potential help and support; and because many of their dealings with
each other involve both of these characteristics simultaneously. The practice of
promising in relation to exchange has evolved amongst individuals who also seek
assurance and care about each others trustworthiness. Hence the development
of a single practice of making and keeping promises that can invoke two quite
distinct bases of obligation bases of obligation that can fall apart, but that
are so often found together.

Notes

1. Versions of this paper have been given at the Universities of California at

Riverside, CEU Budapest, Chicago, Keio Tokyo, Leuven, London, Princeton,
St Andrews, and York.
My thanks for their comments especially to Thomas Baldwin, Annabel
Brett, Daniel Brudney, James Conant, Tim Crane, Wim Decock, Wolfgang
 Promising and Obligation / 419

Ertl, Kati Farkas, Peter Graham, John Haldane, Harold James, Jonathan Lear,
Michael Martin, Elijah Millgram, Veronique Munoz-Darde, Martha Nussbaum,
David Owens, Jon Parkin, John Skorupski, Timothy Stanton, Carlos Steel, Eric
Schliesser, Martin Stone, Candace Vogler, Gary Watson.
2. Natural Law and Natural Rights, Oxford University Press (1980), pp. 298
299.
3. A simple theory of promising, Philosophical Review 115: 1 (2006), p. 51.
4. The Authority of Law, Oxford University Press (1983), p. 257.
5. Promises and obligations in P. M. S. Hacker and J. Raz (eds.), Law, Morality
and Society (Oxford University Press, 1979), p. 218.
6. That is not to rule out cases where the patient might be particularly concerned
to secure an obligation in her favour. It is just to suggest that there can perfectly
well be other cases where all that is really wanted is the doctors presence, and
advance assurance of that presence.
7. A Treatise of Human Nature, L.A. Selby-Bigge (ed.), Oxford University Press
(1978). Book III Part II section V Of the obligation of promises, p. 518.
8. My use of the term promises that for promises as to matters of fact is simply
a useful abbreviation. It is not meant to deny the fact that one can of course
use the promise that form in communicating what I call promises to: as in I
promise you that I will do it.
I have learnt that both in Japanese and in certain US contexts, the use of
one and the same expression, such as I promise to effect both factive and
performative promises, is much less common than it is in British English. For
example, in the US factive promising more commonly involves the use of I
guarantee that or I swear that or some like expression. For reasons that
will become evident, this will not matter to my argument. For what is done
in promising, either factive or performative, can be done with or without the use
of a single set expression such as I promise.
9. Second Treatise of Government, Peter Laslett (ed.), Cambridge University Press
(1960). Chapter 2, Of the state of nature, para 14, p. 277.
10. Op. cit., p. 516.
11. I shall suggest below that the ability to promise and incur promissory obligations
is not in fact dependent on the existence of distinctive linguistic terms such as
promise, but can be exercised prior to and independently of them.
12. For more on this central claim in early modern natural law theory, see my
Natural law and moral obligation from Suarez to Locke in Sara Heinamaa
and Martina Reuter (eds.) Psychology in Philosophy: from Late Scholasticism to
Contemporary Thought, Dordrecht: Springer (2008).
13. See his De Iure Naturae et Gentium, Amsterdam (1688).
14. On the Law of Nature and Nations, C. H. Oldfather and W. A. Oldfather (trans.),
Oxford: Clarendon Press (1934), Book 3, chapter 4, para 1, pp. 37980 (Library
of Congress translation).
15. Op. cit. p. 519.
16. Ibid p. 521.
17. Ibid. pp. 521523.
18. Ibid. pp. 521523.
19. Ibid. pp. 521523.
20. Ibid, p. 516.
420 / Thomas Pink

21. Notice that neither farmer has had to use terms such as I promise. The right
to determine under what conditions one provides ones services and goods to
others preexists the use of such terms as I promise, and can be understood and
asserted without them. It is this preexisting right that helps make the practice of
promising intelligible. As I suggested earlier, the ability to incur what are in effect
promissory obligations does not depend on linguistic terms such as promise,
but can be exercised prior to and independently of such terms.
22. This sentiment of morality, in the performance of promises, arises from the
same principles as that in the abstinence from the property of others. Hume,
ibid. pp. 521523.
23. My thanks to Martha Nussbaum for emphasising this to me.
24. Hugo Grotius, On the Law of War and Peace, F. W. Kelsey (trans.), Oxford:
Clarendon Press (1925), para 3, p 329 (Library of Congress translation).
25. Such a transfer theory is defended by David Owens (op. cit.). According to him,
promissory obligation involves the transfer of the promisors authority over his
action to the promisee: In promising you a lift, I grant you the authority to
require me to give you a lift. . . . to use Kants metaphor, in accepting my promise
you take possession of my choice (p. 71).
26. Owens claims (ibid., pp. 7172) that when the promisee (supposedly) acquires
an authority over the promisor, or takes possession of the promisors choice,
so that the promisor is obliged to perform, this authority is something that the
paradigmatic promisee wants for its own sake. I doubt this is generally true.
27. For a recent version of the expectational theory, see T.M. Scanlon, What We
Owe to Each Other, Harvard University Press (1998), chapter 7.
28. My thanks to Jonathan Lear for emphasizing such cases to me.