Common Law Copyright by Jonathan A. Weiss Esq.

Common Law Copyright by Jonathan A. Weiss Esq.


In many religions and other belief systems, we often refer to the notion of a dead person being effected (no matter how embodied) by the actions of those left behind, be they distressing or ennobling, important or not. There is, as a result, a conclusion reached that promises made to the dead, since their fulfillment or not will effect them in the afterlife should be kept. But, it may be illuminating about the nature of human experiential time and affirmation to examine what other reasons there may be, if we assume, as we do for the purposes of this piece, that there is no afterlife. There appear to be at least five interrelated reasons with different stresses and limits that are worth considering.

Self- affirmation

We all live by principles conscious and unconscious.
We affirm our identities in what we think and also what we do.

Moral people, it is generally accepted, keep their word. When they promise to do something it should be considered as a promise to be kept. Therefore, if a person has made a promise to continue to assert their morality, whether the person who was promised is alive, not known to be alive, or dead makes no difference because what is essential is the promisor as continuing to affirm his moral identity as someone who keeps his word. The activity of keeping the promise also serves as a memorialization of the other individual. Just as public ceremonies not only serve as means to handle grief, so too are they constitute an activity of placing a person=s memory as a public enduring aspect of a world known to those memorializing it. A promise kept, similarly, memorializes that person internally.

But there are limits. Promise keeping is not the only affirmation of morality anyone makes. There are other values. Some can conflict with the promises. Consider for example the deathbed wish of an author (Kafka for example) that all his writings be destroyed or a Whitehead who had all correspondence destroyed pursuant to promises made to those close to him. Do they not owe something (analogous to Socrates’ hemlock justification as his obligation to the State -and culture – which nurtured him) to posterity and the promisor morally connected nor only to that obligation but also to a posterity which could well use those materials. (How much better would it be to have all of Aristotle, Pierce, etc.). More extreme of course is a promise exacted intensely and a precondition to a peaceful death, that someone murder an enemy. In these instances, if there is no afterlife, perhaps other acts of moral self-affirmation may override the self-assertion of keeping a promise to the departed. The abstract test, therefore, would be at the minimum whether the promise extracted if executed would do deep damage to essential beliefs, the basic values of those who were importuned. The promise extracted, seen in this light, would therefore not be central but an important factor to weigh against what the person would normally do, particularly in relation to the departed, to see if it can be accommodated without compromising the values by which the promisor lived.

Continuing the Meaning of the “Other”

We are never continually or consistently in any type of contact with others we know and love. We communicate and act together episodically. Yet, of course, with people who are crucial or with whom we are intimate, we continue a real relationship that is further nurtured and developed by some of our communications and joint reactions. When death is treated as a terminus after which there is nothing, it is not different yet in kind but only degree, with other interruption which have not effected the continuing relationship. The inaptly put phrase often used is that we should do something because that would make the departed happy if he were to know. This is a clumsy way of stating that people absent continue to affect us; and in the case of loved ones (and family members) they continue to affect and form us even after we may no longer see them. Carrying through the promise is also a way of memorializing that individual because the promisor does what the departed cannot longer do but wanted done. Just as a moment of silence to honor the deceased is a public way of having private emphasis on the continuing meaning of that person to all present, so does the fulfillment of a promise establish that the meaning of a life and the purpose of that life’s activities is achieved as a way of making contributions more permanent and the effect of the life more than it was before the death. The acts not only memorialize but as the moments of silence and other public rituals accomplish, they keep memories fresher and more functional for the individuals who still try to live, at least in part, in the terms of another crucial to him and continuing to resonate for him.
Here the limits may come from the obverse of the positive justification. If a promise is made out of an act of charity to help someone die peacefully but the person promising is neither connected to (besides that dramatic moment) nor in agreement with the fulfillment or consequences of that promise, that would appear to have little moral impact in itself. The subtler issue is the effect of the promises fulfillment on the persons affirmation of the Others continuing influence and life. If the promise is so opposed to all the other ideals and characteristics of the person departed, the same test suggested above may be employed. To affirm the others identity and carry it forward, the promise must be faced as a serious obstacle which would sufficiently destroy that general affirmation so that it maybe disregarded but only then with some attempt to accommodate the non-destructive elements, if any contained in that promise.


These two positions may be combined into a third point. Our lives are in part ordered and given meaning because mankind lives by promises and reasonable expectations reasonably induced which are carried to completion by others. To be a person is to promise others implicitly or explicitly (even sometimes unconsciously agreeing by signals to another=s plan – as Ivan in The Brothers Karamazov – comes to know (what he had somewhat suspected) that he had, by a wink, entered into an exchange of promises which formed a conspiracy to kill his father). There are those that argue for the historical nature (and necessity) of a social contract or that it is implicit in any unified culture.
Subgroups are bound not only by common expectations of habits and customs but also by promises made to each other, and promises to achieve results in different aspects of that community interchanged between the members in direct or attenuated fashion. (This too can be said to underlie Socrates’ position). We constitute our relationships as people because we promise, anticipate the fulfillment of other people’s promise, and have those expectations, in general fulfilled. So when we keep a promise to someone departed it is not only an assertion of ourselves, a continuation of the other, but also an assertion of an aspect of our personhood itself. Such a position, although somewhat derivative from the two previous, is not exhausted by them. Someone who is a habitual liar, or even despises the person dying who extracted the promise, is still involved in a society and community in which he acts – governed by expectations generated by promises and by making demands on others to do things for him expects them as other people to live up to their word. In this sense, the promise kept not only is self-affirmation, continuation of the departed, but also an assertion of common personhood.
The limits are similarly derived. The fact that we live in a world of mutually induced expectations and promises explicit and implicit does not mean that all must be honored. Indeed the demand from personhood is weaker than the two others which imply it – any promise kept must also be weighed against its effect on the society and community. If all that is involved is the assertion of personhood (as in a promise made to a dying stranger), the inquiry and scrutiny must be directed to see what the adverse effects of the promise are likely to be before effectuating the word given.

The Binding Nature of Contracts

One legal cliché in now rarely used Latin is Pacta Sunt Servanda, which means that contracts must be fulfilled. Dostoevsky, in Diary of a Writer, makes the profound and subtle point (illustrating one of the virtues of a novel) that a past event is not really past as something which can be understood until we see what consequences ensue. Kant, of course, formulated his justly famous categorical imperative.
What these three references imply is that there is something in the nature of a contract itself that requires fulfillment. This is, as in Kant, a deontological claim but as Dostoevsky suggests it also has teleological consequences. There is a reason for this which can be seen in the law and in Dostoevsky’s insight.
The point of a promise is to make the future as if present. When a promise is made, it forms a type of guarantee that what is promised will come to be. So proffered . . . . it is a way of enabling the person promised – enabled – to treat aspects of the future as functioning in the present so as to rely on them with a certainty near what is understood in fact to be the case then and now. As suggested by the idea of Social Contract, what underlies the affirmation of personhood and self, the carrying forward of another, a promise gives a type of certainties to an otherwise indeterminate future. Sometimes without a promise, there would be no relevant future – as in a contract to create something such as a portrait. Sometimes the promise functions based on certain conditions (in the law treated sometimes as conditions precedent and subsequent – i.e., If such and such happens, I promise to do this or that e.g., If you buy this plot of land and give me some shares I will build something upon it.) The relevant contingency may be beyond the control of an individual or many individuals – e.g., If there is a war, I will take care of your children. But in any event, the promise made has brought the future into a present consideration along with actual present objects and conditions.

Because a promise (or a contract) has this nature, by that nature it obligates those who make it. It has a meaning of its own, a reliance induced, and a status recognized in the law and morality. Promises should be kept because they are promises – with this nature.

The limits are suggested by the Dostoevsky insight. Just as nothing present which will become past is fully known until we know what later ensues, a fortiori, a promise which tries to make the future present is even more effected by the future context at which it is supposed to function. (The counter to Pacta Sunt Servanda on an international level is contradicted perhaps somewhat hypocritically as Rebus Sic Stantibus, that is, treaties may be abrogated when the parties to the treaty have changed). In the law intervening surprises may relieve from obligations – because they constitute unforeseen impossibilities (e.g. to return to the building example, it may be impossible to build there). In the moral human realm, ensuing events may change so that keeping the promise will be destructive of the values or cherished objects for all, or for the promisor so that the commitment to keeping promises is no longer operative – e.g. keeping an edible pet alive when people are starving. Here since the purely deontological claim with its teleological partial justification is to be fulfilled in an indeterminate future, but when major values would be sacrificed, that claim can no longer function.

Third Party Beneficiaries and Reliance

These previous four discussions have all revolved around the person who makes the promise. What must also be considered is the person to whom the promise is made – in at least two aspects.
The first is when the promise extracted is meant to bring value for someone else (presumably for the good of that person). No longer are we talking about continuation, assertion, or the nature of promises but are dealing with another human being who has claims by right of that promise. No longer can we view it as an individual’s obligation alone but also as the right of another. (Wills can often be considered from this vantage point as promises solemnized for the benefit of others regardless of what the future holds – although wills of course can contain conditions, in which case those conditions must obtain).
These instances can involve self-sacrifice for the promisor, even the violation of values held deeply. The limit to the force of the promise is therefore much more attenuated due to the rights of others. The person making the promise must accept the penalty or pain, unless unforeseen or basic, since the person who made the promise is now primarily in the position of being a future agent for the desires of the departed. In so committing himself, s/he has agreed that the promise is for someone else and has obligated him/herself to do that for that person.

Only when such an act is clearly destructive of basic values of all concerned (particularly perhaps the person for whom the promise is made) can one consider breaking it. Promises fulfilled may entail personal sacrifices and losses, but unless those losses (or even sacrifices) will destroy the tissue of society, run counter in fact, to the person who extracted the promises or more precisely his values or expectations of achievement by that promise, or damage the person for whom the promise is intended to benefit rather than achieve that purpose, can that commitment be dishonored.

Relevant to this analysis but independent on it, is the presence of reliance by the person extracting the promise. For, it that person believed the promise would be violated, while alive that person can change his conduct, whom he obligates, or what he expects. (Once again a will serves as an example. Money can be left to one sibling on the promise that he will take care of the other – if the author of the will had known that the promise would be broken, another will would have been written.) Again, Dostoevsky’s insight is valid. The promise is meant to have consequences and will only be fully known when full effectuated with all consequences. The promise is relied on to produce certain results and if they are not more likely (or as close to certainty as is possible) the individual who asks for them may very well change his mind about asking for that promise. What we have in effect when such reliance is broken is a retroactive lie. The limits to this compulsion can only be when the factors upon which the reliance is predicated are eliminated or so changed, that the reliance could never have been considered reasonable. For example, again, the promise to maintain a pet which would result in the unexpected starvation or death of the person promising, the suffering individual can be seen to be free of that promise. For the meaning of the past has been so changed by the future, the reliance can no longer b e considered reasonable and realistic. Then and only then can such a promise be broken – particularly when a third part was the intended beneficiary. (E.g. To promise to take care of another, when that person turns out to be a mass murder either as an individual or part of a powerful organization or government, then the underlying value of humanity, would lead to the acts to prevent such murders even if it means the failure to take care of that evil person.)

Final Considerations

I have suggested five reasons why promises to the dead, in the absence of a relevant afterlife, must be honored. Each, however, has its limitations. For those that involve the integrity and humanity of the person committed, the limits are powerful considerations before actions when important human values are at stake. For those that involve others either relying (or in the absence of such a promise taking different deathbed decisions) or third parties intended as beneficiaries, the promise is a primary value which must be overcome by a clear demonstration of real damage based upon contingencies unexpected by the parties to the promise.
There are also promises not involving other humans, shrines, services, archives, gifts, etc.
These of course fall outside the fifth reason but suggest yet another consideration if not reason. Freud maintained that no one believed in his own death (that all dreams end before the dreamers die in them) and a world without that person is inconceivable to that person. Extracting promises are therefore a form of seeking an immortality that cannot be found in the individual’s actual human life.
Such a wish has an emotional power that we do respect in our commemorations and keeping of promises. It is predicated in part in the recognition that history and mankind are intertwined. We contribute, if we are well intentioned and fortunate, to the world in which we live, benefiting greatly from the achievements of those who preceded us but are no more. In honoring their desire for immortality, not only do we implicitly wish that our immortality will be similarly carried out, if in a world to which we no long belong, but as an assertion that we can contribute even when we no longer exist.

The person who asks for such promises even while dying or anticipating death, manifests his belonging to the human race, culture, family, friends, and institutions, etc. In death, the power and value of human life are exhibited by those asking and those making promises.

Even this little piece reflects that reality.

For it is written in the hope that years after these words are written they will serve as guidance to others still living. 

We assert our humanity by claiming an immortality in what we achieve and what we expect from others.

When we create and act, we do not only for sometimes selfish reasons but also hopefully because we are part of the continuing worth to be found in human history.

When commitments are made to those who have contributed to us and mankind, or claim from us just by means of our common humanity, we do belong to what is good in mankind.

It may not be love of humanity in the purest sense, or even love of others, but it is at least a recognition that people deserve to be loved and honored and that all of us, living and dead, form part of humankind, which apart from its history of horrors, also shows the glories of love and creativity.

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