The religious right in the U.S. emphasizes that its view of human freedom and democracy derives from Christian principles. \u00a0A significant pillar of the religious right’s economic theory is freedom of contract. \u00a0Under 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. \u00a0A 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.<\/p>\n
These are valid notions, but they are not the whole story. \u00a0In his chapter “The Christian Sources of General Contract Law<\/a>” in the splendid Christianity and Law: \u00a0an Introduction, Harold Berman<\/a> traces Western contract law to its medieval canon law roots. \u00a0Berman summarizes these roots as follows:<\/p>\n 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. \u00a0It is important to know, however, that originally they were based on a theory of sin and a theory of equity. \u00a0Our 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. \u00a0Our 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.<\/p><\/blockquote>\n \u00a0(Christianity and Law, at 132). \u00a0This broadly social notion of contracts was modified, Berman notes, during the Puritan era. \u00a0The 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. \u00a0Moreover, 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. \u00a0However, even for the Puritans, “private” contracts were social obligations within the all-inclusive fabric of God’s covenantal relationships with people. \u00a0Private contractual relations were not really “private” — they were covenantal relations between people who were also bound in covenantal relation to God. \u00a0As Berman notes,\u00a0<\/p>\n 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. \u00a0These were not yet the autonomous, self-sufficient individuals of the eighteenth-century Enlightenment. \u00a0England under Puritan rule and in the century that followed was intensely communitarian.<\/p><\/blockquote>\n (Id. at 140). \u00a0<\/p>\n In the Eighteenth and Nineteenth Century Enlightenment, these theories of contract based on justice and covenant were secularized. \u00a0Justice 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.” \u00a0(Id.) \u00a0These 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.” \u00a0(Id. at 140-41).<\/p>\n 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. \u00a0We seem to be left with two options: \u00a0the 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. \u00a0I agree with Berman: \u00a0“[w]e may learn from history . . . that there is a third possibility: \u00a0to build a new and different theory on the foundation of the older ones.” \u00a0(Id. at 141).<\/p>\n","protected":false},"excerpt":{"rendered":" The religious right in the U.S. emphasizes that its view of human freedom and democracy derives from Christian principles. \u00a0A significant pillar of the religious right’s economic theory is freedom of contract. \u00a0Under this view, government should avoid regulating private transactions because the individual parties to contractual agreements are in the best position to judge 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