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Promises Made Under Duress Still Carry Weight, According To Law Expert

Heights Editor

Published: Wednesday, October 17, 2012

Updated: Wednesday, January 9, 2013 18:01

“Your money or your life.” While this phrase is easily recognizable as the catchphrase of a back-alley mugger, less clear is the moral responsibility of the victim when responding to the aggressor in that situation. If a victim attempts to bargain with his attacker, what value should be placed on any promises he makes while under duress?
That was the question explored by Seana Shiffrin, a professor of philosophy, and Pete Kameron, Professor of Law and Social Justice at UCLA. As part of the Clough Distinguished Lectures in Jurisprudence, Shiffrin came to Boston College on Tuesday, Oct. 16 to talk about promises made under duress and what implications for moral progress come from how such promises are viewed. She spoke for about an hour to a room of BC Law students and faculty in the East Wing of the BC Law School on Newton Campus.

“The idea that we aren’t at all responsible for the choices we make under conditions that we do not choose would be an element of the worst kind of libertarian fantasy. And the idea that we’re not responsible for the choices we make under conditions we should not have been under seems like an element of the worst sort of utopian fantasy. Many of the moral situations that are the hallmarks of responsibility are ones we have not chosen, would not choose, and should not be in, had others behaved well,” Shiffrin said in her introduction. Duress, she said, triggers something like temporary insanity—it may partly, but not wholly excuse, actions in such circumstances. The essential definition of a promise is that it transfers discretionary power from promisor to promisee—that is, it enables the promisee to direct the promisor to act in a way he otherwise may not have. Even if the promise is obtained under illegitimate circumstances, Shiffrin argued, it must have some inherent value in order to serve as leverage.

Her talk centered around the initial example of the mugger, differentiating between meek capitulation  of the victim (handing over the wallet), negotiation (offering a ring instead of the wallet), and surreptitious subversion (taking some money out of the wallet while handing it over). Shiffrin argued that, in order for society as a whole to make moral progress—to develop morally, mature in character and habits, and forge moral relationships with others—during negotiation, the victim must actually recognize that he is speaking with another human and thus give his promise some weight. She did not, however, rule out capitulation in all cases, even when it resulted in detriment to the victim:
“I think that some cases of capitulation are more complex, and actually involve substantial courage … I have in mind here what I think was the courageous decision by The New York Times and by The Washington Post to publish Ted Kaczynski’s manifesto in response to his threat and the alternative to continue killing. I think that was proper capitulation, I thought it was courageous capitulation, because I think it exposed both The New York Times and The Washington Post to a lot of criticism about their integrity, but I thought it was the right thing to do.”
Shiffrin concluded by positing that moral progress, especially for those who may be termed morally deficient, cannot happen in isolation—instead, it depends upon functional and supportive relationships, sound institutions, and trust within a community.

“Even if we had a general social practice and policy of containment, avoidance, capture, and segregation of those with criminal intent, even if it were feasible, and we could thereby achieve perfect frustration of criminal aims, there’s something deeply morally inadequate about that approach to moral imperfection,” she said. “Even coupled with the side project of preaching to trigger conversion, that stance can satisfy an imperative to frustrate the bad will, but it runs substantial risks that if will not do much to contribute to our joint moral evolution, as opposed to merely the obstruction and frustration of immoral aims.”

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