Precommitment analysis and societal moral identity.

I. Introduction When precommitment theorists state that "an individual has made a precommitment," they mean that he has chosen in the present to do something (or not to do something) in order to alter the way in which he will respond to particular situations in the future.1 Precommitments can achieve this result either by making it physically impossible for the actor who makes them to respond in certain ways and/or, more usually, by altering the net benefits to the actor in question of various future courses of action. Similarly, in this technical sense, a collective makes a "precommitment" when it makes a current choice in order to alter the way in which it or its members will act in the future by rendering certain acts impossible or by changing the net benefits that certain acts will yield to its members-or perhaps to those of its members who will control its relevant future decisions.2 A wide variety of research has been done on precommitment theory and practice. Thus, some precommitment scholarship elaborates on the basic concept by pointing out that some precommitments are made to influence the conduct of others-such as members of future generations or potential invaders-while other precommitments are motivated solely by the precommitter's desire to control his own future conduct.3 Other precommitment scholarship explains that choices that had not previously been understood in precommitment terms can best be understood in whole or in part as choices to make precommitments.4 Still other precommitment scholarship develops precommitment innovations-i.e., designs new precommitment devices or strategies-and analyzes their advantages and disadvantages relative both to their extant precommitment alternatives and to decisions to make no precommitments at all.5 Finally, a substantial body of applied precommitment scholarship analyzes (1) the private consequences and "profitability" of particular kinds of precommitments for the actor who makes them, (2) the consequences of the relevant precommitments for others, and (3) their social desirability from various (often implicit) value perspectives.6 For example, precommitment scholarship on advance medical directives examines the consequences of encouraging and facilitating the issuance of such directives by informing people of their availability, organizing discussions with family members, helping people select the agents they want to interpret their directives when they are no longer competent to make the relevant decisions, and other preparatory measures. This scholarship also evaluates the results of following such directives, either in general or if specified substantive and/or procedural conditions are satisfied. Similarly, scholars have applied the tools and ideas of precommitment analysis to understand the consequences of constitutional rights and to characterize them on the unexamined7 assumption that societies that consider themselves bound to secure various constitutional rights of those for whom they are responsible can always correctly be said to have made a precommitment to act in this way. This Article argues that precommitment scholarship has tended to ignore the moral identity of the society in which the acts it examines are performed and that scholars who use the "precommitment" concept would do a better job of determining whether the phenomena they are considering are "precommitments" in the technical sense of that term and of normatively evaluating these phenomena if they paid attention to the relevant society's moral identity. In my judgment, if precommitment scholars analyzed the moral identity of the societies whose precommitments they study, they would discover that the relevant societies are liberal, rights-based societies. Such societies are distinguished by three facts-namely, their members and governments (1) engage in a bifurcated, prescriptive-moral discourse that distinguishes moral-rights claims from moral-ought claims, (2) privilege moral-rights conclusions over moral-ought conclusions when the two conflict, and (3) are committed to deriving their concrete moral-rights conclusions from an abstract "liberal" commitment to treating all rights-bearing entities for whom they are responsible with appropriate, equal respect and concern. …