The Promise, Contract Law, and Ethics

As in many areas of common law, contract law is rooted in morality. The legal mechanisms to form, interpret, enforce, and remediate contracts in many ways resemble in very specific detail the simple moral of making promises and living up to them. "It is believed that 'promise' in law is the equivalent of 'contract.'"¹ Often the less refined and more straightforward moral sensibility feels at odds with the determinations of what is just and good in contract law. For instance, while contract law generally views breach of contract as permissible and even necessary in certain circumstances, it is nevertheless seen as morally wrong by some in the legal community. The preference for payment of expectation damages in many cases, rather than the enforcement of specific performance in all circumstances, is also an evolution in contract law that appears to conflict with moral expectations.

Yet while these inconsistencies bring well-intentioned and valuable debate as to the merits of established doctrines of contract law, they may also be useful in offering feedback to the ethical systems which find themselves opposed to what has evolved in modern contract law. After all, of necessity legal systems have emerged as more specified and more practical than the ethical systems they are based on. It is true that morality is rightly seen as the basis for law and not the other way around. Yet "[m]orality on its own is incomplete and cannot provide a viable guide to what we are required to do in particular situations." It is not uncommon for law to influence morality, just as morality influences law. "Morality is more like an outline from which details are missing. Laws, along with conventions, fill many of these in."²

This essay will show how conflicts between prominent doctrines of contract law and some ethical systems can be overcome by a finer assessment of these ethical systems. Specifically, deontological ethics appear to leave little room for condoning broken promises and are thereby violated by those aspects of contract law which sanction contract dissolution. An examination of these doctrines of contract law can reveal possible improvements or refinement in deontological ethical systems. This will show that inconsistencies between deontological morality and law are more apparent than real. It may also indicate that deontological ethics are perhaps not so different from consequentialist or utilitarian ethics in practice, even if they are in theory.

The presentation of this argument entails three investigations. First, an overview of how a promise is treated in modern contract law will look at how it is based on moral notions, what ethical system is responsible for the current doctrines, and which of those doctrines are most troublesome to deontological ethics. Second, a review of the main variants of deontological ethical systems will focus on how each system derives its maxims, what maxims or moral rules would specifically apply to the making and breaking of promises, and what difficulties or criticisms of these systems are important when considering these rules. The third investigation will propose how the apparent divergence between contract law and deontological systems can be reconciled; this will be accomplished by assessing the appropriate responses of deontological ethics to the difficult issue of breach in contract law. It will also examine how this reconciliation may signify a bridge between deontological and consequentialist ethics and what implications this has for ethical thought. The essay will conclude with suggestions of other areas of common law which may be used to feedback to ethical systems.

As morality is intended to provide for the rules and conventions of how people interact with appropriate consideration for their mutual benefit, law is intended to specify these rules and enforce them to attain a cooperative and peaceful civil society. "Most legal systems appear to reflect, in a broad and approximate manner, the moral notions of the societies in which the legal systems apply."³ Contract law attempts to reflect the moral notion of a promise or a deal. As societies grow and coordination increases with those unfamiliar to us, law becomes a necessary supplement to morality; a common expectation is required to maintain such extensive coordination.⁴ Morality alone can not bear the burden as these connections expand. The possibilities of agents lacking in moral virtue and of the diminishing importance of reputation increase with the size of society and the scope of coordination.

Nevertheless, not all morals can be enforced by law: "there are important respects in which legal systems do not reflect the notions of morality that a society holds … [M]any acts considered to be wrong are not sanctioned by the law." Due to the costs of information gathering and enforcement, "it is relatively inexpensive and generally sufficient to control much such behavior through our notions of morality alone."⁵ This is also true with respect to promises and contracts. It is simply too bothersome and costly to draw up (let alone enforce) a contract for a minor social engagement or a trivial financial transaction between friends. Such minor promises or promises between people who have mutual trust often fall back on the moral sanctity of a promise.

Like many other areas of the law, contract law has evolved such that the purpose of the underlying legal principles is to advance social welfare and promote wealth maximization. The following claim by Steven Shavell illustrates this:

"[I]t is not just that the law fosters the keeping of contracts because of the moral value people place on promise-keeping. Rather, the law has also evolved to foster the keeping of contracts because of the functional value of so doing, and the moral notion of promise-keeping has evolved because of the same functional value."⁶

Shavell indicates that contract law evolved to increase "functional value" and that promise-keeping in ethics has done the same. As we shall see, most aspects or rules of contract law have increased "functional value" by advancing wealth maximization. In this sense, the moral grounding for contract law is essentially a rule-based consequentialism. Brad Hooker describes rule-consequentialism as "the view that an act is morally permissible if and only if it is allowed by the code of rules whose general acceptance would … produce the best consequences, judged impartially."⁷ That the law attempts to follow a morality based on a "code of rules" is undeniable. That the intent is to find such rules so as to "produce the best consequences" is evident in the use of the wealth-maximization criterion. However, the legal scholar Richard Posner argues that the basis for the trend in common law to promote wealth maximization is not utilitarianism, a strand of consequentialism. Yet he concedes that the principal difference between utilitarianism and wealth maximization is the applied standard of value; one uses utility, the other money wealth. He does not dispute that both attempt to "maximize" a perceived good. Indeed, he admits that "the welfare economist is often just an applied utilitarian."⁸ Thus, both are within the consequentialist realm of ethical theories.

Almost all of the principal doctrines of contract law have evolved pursuant to the goal of wealth maximization. As such, some have theoretical conflicts with deontological notions of the duty of promise-keeping. Contract breach is a clear and obvious instance. Rules for damages are constructed such that there is often greater incentive to breach the contract if contract terms become more unfavorable to one or both parties as the costs of performance become apparent. This is consistent with the principle of wealth maximization: if circumstances change such that performing the contract now costs one party more than it benefits the other, there is no net social gain from continuing performance. Further, in such situations neither party would desire performance if appropriate damages are paid; the party who would benefit from performance would receive damages equal to the expected benefit of performance (under the doctrine of expectation damages), and the party who it would cost would be better off in paying these damages than the greater cost of performance. Breach of contract and the payment of expectation damages is Pareto optimal to contract performance. The theoretical problem this poses for deontological ethics is that one's moral duty to fulfill one's promises except in dire circumstances⁹ is not honored or promoted by the law. As a result, "most [legal] scholars view [contract] breach as in some sense a morally bad act, because it resembles a broken promise."¹⁰

A closely related doctrine with similar problems is the widespread use of expectation damages rather than specific performance as a remedy for breach of contract. Because contracts do not often specify all of the contingencies in which breach would be socially (and thus mutually) optimal, expectation damages are common and contract law rarely results in specific performance. Rather, "Specific performance is mutually preferred to the expectation measure [only] if courts might underestimate the value of performance."¹¹ Again, deontologists would theoretically disagree—they would see specific performance (the keeping of one's promise in spite of circumstances) as the only suitable outcome in contract law.

Other doctrines of contract law also have theoretical conflict with moral duties. These will not be examined in detail here, but consideration, duress, and reliance all have a more compromising and nuanced appreciation in contract law than in deontological ethics. While the reconciliation of ethical principles with contract law elaborated with regard to contract breach may be extended to these areas in some degree, a separate investigation would be necessary to properly assess the difficulties they pose and how these difficulties might be approached.

Rule-consequentialism, as embodied in the guiding principle of wealth maximization in contract law, does not specifically consider promise-keeping itself to be a primary (or perhaps even a secondary) moral goal. It is admitted that, in some versions of their ethics, "consequentialists are meant to aim at producing optimum, or at least satisfactory, promise-keeping overall,"¹² due to its presence as a "moral good." To the extent that contract law adheres to the principle of wealth-maximization, however, this is not true; the exacting nature of the awards for expectation damages, for example, attests to no discriminate punitive levy for the failure to keep the contract. As in many other consequentialist situations, though, the pursuit of a reasonable proxy for goodness such as wealth maximization results in a high degree of promise-keeping as a perhaps unintentional by-product. This seemingly fortuitous outcome is rooted in the idea that most (if not all) duties prescribed by deontological ethical theories ultimately originate from their consequential value, despite claims by deontologists otherwise. Ultimately, promise-keeping in those consequentialist ethics upon which contract law is derived is only concerned with the utility to the parties of keeping a promise, not to promise-keeping as a discriminate moral value.

Deontological ethics is a vast field, and it would be gratuitous and not far from impossible to survey all of the variants to garner a satisfactory impression of the general approach of the genre to the moral of promise-keeping. Instead, three representative theories will be examined here: Kantian ethics (Immanuel Kant), intuitionist ethics (Sir David Ross), and contractarian ethics (John Rawls).

The most famous deontological theory was advanced by the German philosopher Immanuel Kant. Kant's ethical theory revolves around his notion of the categorical imperative.¹³ This he states as follows: "Act always on such a maxim as thou canst at the same time will to be a universal law."¹⁴ This is contrasted with the hypothetical imperative: those actions resulting from maxims that are conditional or are good only as a means to something else.¹⁵

Kant himself addresses the question of promises as an example of the application of his theory. He describes the situation of a man who is "forced by necessity to borrow money. He knows that he will not be able to repay it," but can not acquire the funds without promising to pay within a definite time. A promise here would be morally impermissible to Kant. For, if it were to be willed to be a universal law, "the promise itself would become impossible, as well as the end that one might have in view in it, since no one would consider that anything was promised to him, but would ridicule all such statements as vain pretences."¹⁶ The appropriate maxim in this situation would thus appear to be: When I am in need of money, I will promise to repay only if I honestly intend to do so. This is a "perfect duty" in that the breaking of promises would lead to no one accepting them in the first place. Now consider that a promise would always require an expectation of fulfillment in order for it to obtain acceptance, regardless of whether it was repayment of a debt, or meeting someone at a restaurant, or producing contracted work. Because this "perfect duty" of promises does not change with circumstances, the maxim can be generalized to the following: In all situations I will offer a promise only if I honestly intend to keep it.¹⁷

The categorical imperative has been widely criticized and is extremely controversial.¹⁸ One obvious problem is that the guiding principle appears to result in both false positives (where a categorical imperative appears to permit an obviously immoral act) and false negatives (where obviously permissible behavior is ruled out). An example of a false positive related to promises is: 'I will not keep promises to children.' A false negative may be: 'I promise to always wear red so people can find me.'

Perhaps the most persistent criticism has been that Kant's theory had some unpleasant practical problems. Benjamin Constant raised the concern that a Kantian agent would be bound to respond truthfully to a murderer inquiring about the whereabouts of his intended victim. Kant responded that the bystander was nevertheless bound to tell the truth, and that the direct consequences of one's actions can never be known.¹⁹ Kant can be seen as therefore taking an absolutist view—not only are some acts moral independent of their consequences, but they are moral regardless of their consequences. This is related to the difficulty that it is impossible to discern which maxim to follow if two or more conflict. Both of these issues were addressed by Sir David Ross in his intuitionist theory of ethics.

Ross' theory followed Kant's but recognized the problem of competing moral duties. Ross believed that a moral order is part of the nature of the universe, but is not strictly or rationally definable. He specified the following (admittedly inexhaustive) list of prima facie (i.e., ostensive) moral duties: (1) duties from previous acts, including those "resting on a promise" and reparations for previous wrongful acts; (2) duties of gratitude; (3) duties of justice, i.e. to correct the "distribution of pleasure or happiness" to accord with personal merit; (4) duties of beneficence; (5) duties of self-improvement; and (6) duties to refrain from injuring others.²⁰ As to how to determine the rightness of acts when more than one of these duties conflict, Ross offers the following guide:

"When I am in a situation, as perhaps I always am, in which more than one of these prima facie duties is incumbent on me, what I have to do is to study the situation as fully as I can until I form the considered opinion … that in the circumstances one of them is more incumbent than any other; then I am bound to think that to do this prima facie duty is my duty sans phrase in the situation."²¹

In other words, one must use intuition to determine which prima facie duty is the weightiest, and to act in accordance with that intuition.

The inclusion of obligations "resting on a promise" as prima facie duties positions promise-keeping as a first-order moral principle in Ross' intuitionism. However, because the nature of intuitionism permits other prima facie duties to trump promise-keeping, it is a weaker moral principle than that offered by Kant. As Ross himself states, "If I have promised to meet a friend at a particular time for some trivial purpose, I should certainly think myself justified in breaking my engagement if by doing so I could prevent a serious accident or bring relief to the victims of one."²² Yet as both are prima facie duties, we feel compunction for not being able to do both, and recognize "that it is our duty to make up somehow to the promisee for the breaking of the promise."²³ Thus, breaking a promise is permitted if keeping it either prohibits one from helping others (or thanking others, or dispensing justice, or improving oneself) or causes one to hurt others to a degree that is judged more severe than the broken promise. Further, it is important to note that Ross in no way considers good consequences as part of the moral calculus, despite duties such as beneficence and justice. Importantly, he states that "when I think it right to [relieve distress] at the cost of [breaking a promise], it is not because I think I shall produce more good thereby but because I think it the duty which is in the circumstances more of a duty."²⁴ Ross' prima facie duties are not good consequences in disguise, but rather good in themselves; his theory is still authentically deontological.

The ideas and principles developed in John Rawls' A Theory of Justice are often cited as the basis for a contractarian theory of deontological ethics. While Rawls makes clear that his work is limited and not intended to constitute a complete ethical theory, "it is clear that the contractarian idea can be extended to the choice of more or less an entire ethical system, that is, to a system including principles for all the virtues and not only for justice."²⁵ The contractarian idea that Rawls created was to assume that all ethical principles (and principles of justice of import to his limited theory of distributional ethics) are only justified if they would be chosen by individuals from the myopic confines of an "original position," such being a hypothetical construct whereby all participants are stripped of worldly characteristics, capabilities, and knowledge of eventual outcomes.²⁶ This sets Rawls apart from traditional deontologists like Kant and especially Ross because it admits a naturalistic basis for morals; principles are ethical because they would be chosen by individuals (with impartial desires), not because they are an independent metaphysical force. In this way, contractarian ethics can be seen as lacking in some ontological properties yet still just as distant from consequentialism.²⁷

Rawls does not regard a promise to have a special, inviolable ethical significance, but he does grant that it is a moral derivable from his contract system. Rawls held that promises are simply constitutive conventions that are not binding moral obligations unless we have something akin to "a general agreement to keep agreements."²⁸ In other words, the idea that promise-keeping is ethical is true only if such an idea would be agreeable to individuals in the original position. Rawls believes that this would be the case: "The obligation to keep a promise is a consequence of the principle of fairness."²⁹ However, it has been argued that "any contractarian position—classical or hypothetical—needs to presuppose the validity of promissory obligations instead of, as Rawls implies, the other way around."³⁰ This results from the notion that a social contract is itself a promise, a point that seems to have eluded Rawls when discussing the ethical basis for promises. Notwithstanding this pre-eminent argument for contractarian promises, Rawls' theory appears to have just one distinction between rule-consequentialism and his contractarian view in the analysis of promise-keeping: in his view one must remove all considerations of the endowments of the parties.

The insight that contractarian systems ultimately rely on human desires for beneficial consequences exposes some difficult questions for deontological ethics. The discovery of morals which ought to be followed ultimately relies on a human determination of what is valuable, useful, and wanted. Indeed, Rawls' theory of justice elaborates two principles chosen in the original position which should govern our political theory; both of these are chosen by considerations of fairness and equality that are consequentialist in purpose.³¹

Returning to the doctrines of contract law which are particularly divergent from deontological ethics, breach of contract and expectation damages appear irreconcilable to all three ethical systems. The whole idea that breaking a promise is wrong in itself, apart from the consequences, fingers the concept of contract breach as that most offensive to the deontological view of morality.

The escape from this rigid dogmatism of thou shall not breach lies in the legal principle of incomplete contracts. If all contingencies could be specified in advance, the simple rule that all contracts should be honored would no doubt hold, even in a legal system with a wealth-maximization goal. However, most if not all contracts are imperfectly specified due to the excessive cost of full specification. It is beneficial for both parties to leave out details for contingencies that are rare, expensive to assess, expensive to litigate, difficult to enforce, or of marginal significance. As a result, parties either explicitly or implicitly rely on the legal system to interpret contracts "as if they had spent the time and effort to specify more detailed terms."³² Similarly, promises made in everyday life (outside of contract law), large and small, are invariably promises which are incompletely specified. When promises are broken, if parties had honorable intentions it usually happens because a contingency arose that was unexpected or given scant risk by the promising party. Yet while it is considered mildly immoral that I arrive twenty minutes late to a lunch date because I performed cardio-pulmonary resuscitation on a stranger who suffered a collapse in my path of travel, it would have been rather more immoral for me to keep that promise given my knowledge of first aid. Nevertheless, it would have been absurd and incomprehensible for me to have stated in making my appointment, 'I will meet you for lunch at 1pm at our favorite restaurant, except if I am required for CPR services at any time from 12pm until 1pm, in which case I may be late by an indeterminate amount of time.' No doubt I would have to include all other contingencies which may require my (or your) attention, it being quite vague and useless for me to say, '… except if something more important comes up.' It is just this last which is quite implied when we make such promises of appointment. When we tie this back to contract law, we see that,

"Given … the assumption that the completely specified contract represents the promise of the parties that ought to be kept, and that incomplete contracts are not what ought to be kept, we can see that the view that it is immoral to breach contracts and pay damages is confused and may well represent the opposite of the truth."³³

The 'damages' which are paid when breaking a non-contractual promise are likely to be a feeling of remorse and a duty to remit some consideration to my aggrieved party, whether this be a greater share of the lunch bill or a forgiveness of similar wrongs committed on his behalf.

It is critical to realize that in contract law the party which breaches does not benefit from the act of breaching unless this is directly caused by a lack of contract specification. This is based on the idea that contracts are formed by rational parties for their mutual benefit. If this is the case, then neither party would desire breach (and payment of damages) unless a contingency arose which suddenly made the contract unprofitable for one party. If such a contingency were specified, the contract is not broken; if not, then the benefit from the act of breaching is to reduce the cost of performing the contract, which is now positive, to zero, this benefit being wholly achieved by a lack of specification.

Contract law provides incentives to attain an optimum level of contract specification. Parties will only specify the handling of those contingencies that are possible enough and are accessible and enforceable enough such that the act of specification costs less than the net loss from a common law interpretation of how they would have been handled if they had been specified. This may induce parties to intentionally leave out contract terms whose omission will increase the likelihood of contract breach. Should parties see it as a duty to specify more than what is optimal from a wealth maximization standpoint so as to further the goal of greater adherence to keeping one's promise? This is a further ethical concern.

When contract breach is given proper consideration, not only does the deontologic objection to breach melt in the light of underspecified contracts, but it reveals some imperfect structural foundations of the principal deontological theories.

Let us start with the proposition that the breaking of a promise is yet not unethical if: (1) it is due to a contingency that occurred (or became known) after the promise was made; and (2) if this contingency was envisioned when the promise was made, the promise would have explicitly excused it and, in the event, provided for promise-breaking and its aftermath. If we replace the word "promise" with the word "contract" in the proposition, we have a reasonable approximation of acceptable breach in contract law. The wealth-maximization form of utilitarianism is one ethical system which would accept this proposition. If it is also acceptable to deontological ethical theories due to the under-specification of the promise, what are the implications for those theories?

To begin with, Kant's theory of ethics has a basic deontological presumption in the categorical imperative, but the determination in this imperative relies on individual judgments that may be egoist. It is understood that the moral principle which guides the Kantian individual is to act as if one would will the same to be a universal law; but what is it that the individual uses as a guide of value when determining if he would will an act to be a universal law? Are we to assume that this would be just self-interest? For example, if my maxim is I shall steal when I desire something, the implicit reason that this fails Kant's test is that I would suffer if everyone stole when they desired something of mine. But what if my basic moral outlook is altruistic, i.e. that I would put others' well-being always above my own. Then I would welcome the possibility that others could simply take something of mine when they desired it. In this case my maxim I shall steal when I desire something, when applied to the categorical imperative, results in an acceptable universal law. Hence, if I follow Kant I am compelled to steal, in direct contradiction to my altruistic nature. This paradox is not intended to unveil a flaw in Kant's system; it is merely intended to prove that Kant's system has an implied assumption of human self-interest at its core.

Rawls' system also has an implicit self-interest in the ultimate determination of ethical conduct. If we continue to accept only the conception of the original position (and not the principles of justice chosen therein) as Rawls' deontological ethical theory, individuals stripped of their worldly characteristics and advantages in the original position would choose principles which maximized the minimum amount of primary goods obtainable when their characteristics became known. Primary goods include "rights and liberties, opportunities and powers, income and wealth."³⁴ That there is a residual awareness that primary goods are desired, that income and wealth imply private property and its utility, and that individuals choose ethics to further their private stock of these goods, all indicate that individuals in the original position are implicitly self-interested.

It is crucial to make the distinction between matters of intent and matters of fact in deontological ethics. We can accept the tendered proposition if acts are moral based on intent. For if we intended to keep our promise, but were confronted with an emergency, we may honestly claim that our intent was to keep the promise with what we knew when we made it, and that if we had considered the emergency, we would have intended that the promise be broken. We can not accept the proposition if acts are moral based on fact. That is, if we must continue to make all efforts so as to keep our promise, it being an unqualified promise at the time given, then contingencies do not matter. Kant makes clear that acts are moral based on intent. Rawls' system does not specify as to the morality of acts, only of rules. Ross, on the other hand, pointedly indicates that in his system acts are moral based on fact:

"it is not our duty to have certain motives, but to do certain acts. By 'fidelity', for instance, is meant, strictly, the disposition to fulfil [sic] promises and implicit promises because we have made them. We have no general word to cover the actual fulfillment of promises and implicit promises irrespective of motive; and I use 'fidelity', loosely but perhaps conveniently, to fill this gap."³⁵

This effectively makes our proposition irreconcilable with Ross' theory based on the hidden nature of contingencies alone; the contingencies would need to place demands on a competing moral duty of a greater weight than the promise itself. This is curious given that intent, as a property of the agent rather than the outcome, is a central focus in deontological ethics.

Implied self-interest (when judging the viability of universal laws) and morality based on intent become important issues when reviewing a critical problem in deontological reasoning: the problem of granularity. Simply stated, the finer the specification of a kind of act, the more deontological theories resemble consequentialist theories. If our maxim is I shall not make promises I can not keep, breaking a promise (for whatever reason) appears to be immoral from the point of view of Kant, Ross, and Rawls, but may not be immoral in a utilitarian or consequentialist view. At another extreme, one may act from the maxim I shall not make a personal lunch appointment on a weekday with a friend of twelve years if I can not keep it, notwithstanding the possibilities that: (1) I get into a serious accident that morning driving my car or as a pedestrian; (2) I am sick that day from (a) appendicitis, (b) botchulism, … etc.; (3) I get abducted before then by (a) terrorists, (b) aliens, … etc.; and … (∞) etcetera. Note that different kinds of promises (in this case, a personal lunch appointment on a weekday with a friend of twelve years) require perhaps different excusing possibilities (not to mention different reparations). If one were to specify all of the acceptable exceptions to all of the possible kinds of promises, one would find that the distinctions between these are generally based on some balance of the value of the consequence of breaking that kind of promise and the value of attending to the emergency involved. It is only in stating the general rule (apart from considered contingencies) that consequences can feasibly be ignored.

It is striking that this granularity issue has not been given recognition by Kant's critics. While Kant may object to such granularity and prefer an absolute rule, Ross and others are right to see this as too simplistic. An absolutist approach may work (tenuously) with moral rules which are generally absolute, such as I shall not murder another human being, but fails with moral rules that depend greatly on the circumstances of the agent and the environment in which he finds himself, such as I shall be charitable with my excess wealth. In contract law, the simple notion that all contracts willingly made by coherent parties will be honored is generally true. But it is too simple to suggest that circumstances do not permit exceptions, as they should with promises and morality.

If it is recognized that a full (or even partial) deliberation of the applicable contingencies would inhibit one's ability to keep a promise (or do much else in life), and it is one's intent that these caveats are implied in the given promise, a certain approximation of what is implied is appropriate. Furthermore, it would be in one's self-interest and thus applicable as a universal law (or as an ethic chosen in the original position) to include these caveats. However, the approximation must rest, as it does in contract law, on an impartial judgment of what would have been intended at the time of the promise, not on the biased judgment of one party or another ex post. It is in this sense that intuition of the kind Ross described may be useful.

Ultimately we see that deontological theories, especially Kantian and contractarian ethics, can be assimilated with rule-consequentialism to a surprising degree. This is largely due to the fact that Kantian and contractarian systems have an element of self-interest, and thus of worldly value, as part of their decision-making process. Also important is the reducibility of general moral rules to countless more specific rules when the various circumstances of the violation of the rule are enabled by a varying list of exceptions; that the intent of the agent(s) involved would be to specify such exceptions as is done in contract law is instrumental in such formulations. Since distinctions between these many variations of the same general rule turn on questions of value rather than questions of duty, it is difficult to separate deontological ethics from some forms of consequentialism.

More research in this area appears to be possible. Other areas of contract law may be pursued to further refine the criticisms of deontological ethics presented here. Also, promises include many areas of morality, such as marriage and inheritance, which may be served by a revaluation of morals based on treatment in law. Finally, this feedback approach, in which the refinements of law may be used to discover new ways to analyze ethics, may be extended to criminal law, tort law, and perhaps public choice. In all these areas morality preceded law, yet law is the more developed. The moral foundations on which law is built can be better understood by looking to the elaborate superstructure rather than tunneling underground.