While by the 17th century, contract law had been somewhat simplified in England, "assumpsit was essentially an action for breach of (a unilateral) promise, not breach of (a bilateral) contract in the modern sense, and the required consideration was conceived in terms of the moral justification and purpose of the promise." The Puritans in general were distrustful of the criteria of equity used by canon law courts, for they felt it was too inconsistent and left too much power in the hands of judges. Under their influence, contract law shifted:
- from breach of promise to breach of a bargain as the basis for (a more interdependent)liability;
- from the cause of the motive and purpose of a contract to "the price paid by the promisee for the promise of the promisor;"
- and from questions of moral fault to those of absolute obligation.
(Berman points out that under Puritan law a person could be forced to pay rent on land even if the property were not fit for habitation!)
Yet we cannot forget that for the Puritans, contacts were no mere secular promises; they were binding covenants of a personal nature, conceived in closely-tied communities, and executed before a God of order. Likewise, they were made by sinful people subject to corruption who needed objective, consistent laws to hold them to account, and they were part of a larger vision of covenants within every order of society that bound the people into a commonwealth of grace and salvation.
Thus, though the Puritan conception of contract law introduced parties into the conception of obligations, they did not make the move that later Enlightenment theories would make:
In the late eighteenth and nineteenth centuries, these older theories of contract law were secularized, in the sense that their religious foundations were replaced by a conception based not on faith in a transcendent reason and a transcendent will, from which human reason and will are derived and to which they are responsible, but rather on the inherent freedom of each individual to exercise his own autonomous reason and will, subject only to considerations of social utility.
I am not at all convinced that this shift was a beneficial one, and from a Christian perspective, might even be considered modern idolatry. What have we lost in these transitions, especially in the way we conceive of the rationality, equity, and covenantal nature of our contracts and obligations?
To me this seems to be a beneficial shift. I share the concern you cited Puritans as having - the concern of using 'fairness' or 'equity' in cannon law. Such concepts, unless precisely defined, remain vague enough to be devastatingly harmful.
ReplyDeleteI think that the focus on the autonomy of the individual, while it has its drawbacks if carried too far into an argument for autonomy from the Creator, has been on net balance tremendously helpful for all societies that have embraced it.
What have we lost? We have probably lost some ability to find life's meaning in our community to the extent that our forefathers did. We have lost the ability to exercise greater control for others in our communities. What else?
In this particular case, I believe what we have lost is our pledges having a basis in a worldview that obligates one to God and to others because of relationships that reveal our connection to one another.
ReplyDeleteI do agree that equity as a concept can be misused as can any concept, but I'm attracted to the idea that a contract can be evaluated for its justice and not just its bargain. It does assume that a judge actually has given some proof of the character to make such judgments, as well as himself or herself being accountable to other governing authorities.
Likewise, I do value the Puritans for stressing that contracts are more than just mutual agreements. They are bargins made in accountable, knowable relationships. They have a context and are subject to public opinion.
And yes, this does assume that our property is not finally or entirely our own but something to which we are accountable to God and meighbor for. But keep in mind I don't have communism or socialism in mind here, but something more like the Old Testament practice of keeping family lands within the family or like Jesus' teaching on giving to one's enemies. It is "mine," but not in an absolutist sense.
Do you think there's any connection to be drawn between this discussion of contracts and the one about marriage?
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