Crescente Molina

In this article, I offer a theoretical account of a central yet surprisingly overlooked form of legal influence or control, one that I refer to as the law’s ‘exhortative’ influence. The law exercises an ‘imperative’ influence when it purports to control agents’ behavior by imposing on them legal duties to act or refrain from acting in the legally desired or repelled way. By contrast, it exercises what I call an exhortative form of influence when it aims at impacting agents’ reasons for action whilst refraining from mandating or prohibiting the legally desired or repelled conduct. The law’s exhortative control or influence must be distinguished not only from its imperative influence, but also from what I call the law’s merely ‘instructive’ form of influence, such as the one provided by so-called power-conferring laws. Though I illustrate the functioning of this special form of legal control—the law’s exhortative influence—by using primarily the example of the law of contracts, the article offers novel insights about law in general as a mode of social ordering by developing a theory of the structure of ‘legal incentives’. Legal incentives, I contend, are the means through which the law exercises its exhortative influence. Clearly distinguishing different techniques of legal influence is not only of analytical interest, but should invite us to think of accounts of the justification of legal authority that consider the similarities but also the differences in the moral significance of these diverse techniques.

This article argues that the notion of a promissory right captures a central feature of the morality of promising which cannot be explained by the notion of promissory obligation alone: the fact that the promisee acquires a full range of control over the promisor’s obligation. It defends two main claims. First, it argues that promissory rights are distinctively grounded in our interest in controlling others’ deontic world. Second, it proposes a version of the ‘Interest Theory’ of rights that incorporates our interest in purely deontic forms of control into the various human interests that constitute the grounds of our rights.

Under a widespread understanding of the nature of moral obligation, one cannot be under an obligation to perform or omit an act and have a moral power to release oneself from one’s obligation. According to this view, being under an obligation necessarily entails relinquishing one’s sovereignty over the obligatory matter, that is, one’s capacity to control one’s own obligational world. This essay argues against such a view. I shall argue that by making what I will call a commitment, a person assumes an obligation towards another on a given matter whilst preserving the power to release herself from her obligation. Commitments constitute morally obligatory acts over which’s obligatoriness those obliged always retain control. They constitute obligations over which obligors preserve moral sovereignty. I show that the notion of commitment sheds light on the structure of important moral phenomena such as some of our loyalty obligations, and, furthermore, that it reveals something central about the justification and scope of the law of contracts.

According to Joseph Raz, the fact of making a valid promise creates “promissory reasons”: it constitutes for the promisor a reason for performing her promise and a reason for not acting for at least some of the reasons that recommend something different than performing. In his latest work on promising, Raz provides a novel account of the grounds of promissory reasons—an account which is different in important respects to the one he defended decades ago. In this paper, I argue that, as his previous one, his latest account of the grounds of promissory reasons faces significant difficulties.