Category: Law and Policy

The religious right in the U.S. emphasizes that its view of human freedom and democracy derives from Christian principles.  A significant pillar of the religious right’s economic theory is freedom of contract.  Under this view, government should avoid regulating private transactions because the individual parties to contractual agreements are in the best position to judge the value of their bargain and possess the moral freedom to make their own bargains.  A theological basis for this view is the inherent worth of the individual in the Christian tradition and the tendency of people with governmental power to abuse that power.

These are valid notions, but they are not the whole story.  In his chapter “The Christian Sources of General Contract Law” in the splendid Christianity and Law:  an Introduction, Harold Berman traces Western contract law to its medieval canon law roots.  Berman summarizes these roots as follows:

In subsequent centuries, many of the basic principles of the canon law of contract were adopted by secular law and eventually came to be justified on the basis of will-theory and party autonomy.  It is important to know, however, that originally they were based on a theory of sin and a theory of equity.  Our modern Western contract law did not start form the proposition that every individual has a moral right to dispose of his property by means of making promises, and that in the interest of justice a promise should be legally enforced unless it offends reason or public policy.  Our contract law started, on the contrary, from the theory that a prmise created an obligation to God, and that for the salvation of souls God instituted the ecclesiastical and secular courts with the task, in part, of enforcing contractual obligations to the extent that such obligations are just.

 (Christianity and Law, at 132).  This broadly social notion of contracts was modified, Berman notes, during the Puritan era.  The Puritans’ strong notion of total depravity made them less willing to place the authority to determine which obligations are “just” in the hands of a magistrate.  Moreover, the Puritans’ emphasis on order inclined them to seek the meaning of contractual documents in the literal words of the document rather than in an overarching contractual hermeneutic of justice.  However, even for the Puritans, “private” contracts were social obligations within the all-inclusive fabric of God’s covenantal relationships with people.  Private contractual relations were not really “private” — they were covenantal relations between people who were also bound in covenantal relation to God.  As Berman notes, 

the Puritan stress on bargain and on calculability (“order”) should not obscure the fact that the bargain presupposed a strong relationship between teh contracting parties within the community.  These were not yet the autonomous, self-sufficient individuals of the eighteenth-century Enlightenment.  England under Puritan rule and in the century that followed was intensely communitarian.

(Id. at 140).  

In the Eighteenth and Nineteenth Century Enlightenment, these theories of contract based on justice and covenant were secularized.  Justice and covenant were replaced with “the inherent freedom of each individual to exercise his own autonomous reason and will, subject only to considerations of social utility.”  (Id.)  These Enlightenment ideas “broke many of the links not only between contract law and moral theology but also between contract law and the comunitarian postulates which had informed both Catholic and Protestant legal traditions.”  (Id. at 140-41).

It is a shame, I think, that contemporary evangelical discourse about law seems to focus so heavily on notions of individual freedom to contract that are more post-Christian than Christian.  We seem to be left with two options:  the current prevailing secular legal theory of contracts, which is strictly realist and pragmatic and elides any notion of higher values, and the religious right’s libertarian view of contract, which elevates the individual far above the community.  I agree with Berman:  “[w]e may learn from history . . . that there is a third possibility:  to build a new and different theory on the foundation of the older ones.”  (Id. at 141).