{"id":5731,"date":"2010-03-08T06:01:08","date_gmt":"2010-03-08T06:01:08","guid":{"rendered":"http:\/\/blog.beliefnet.com\/jesuscreed\/2010\/03\/law-at-the-jesus-creed-david-o-9.html"},"modified":"2010-03-08T06:01:08","modified_gmt":"2010-03-08T06:01:08","slug":"law-at-the-jesus-creed-david-o-9","status":"publish","type":"post","link":"https:\/\/www.beliefnet.com\/columnists\/jesuscreed\/2010\/03\/law-at-the-jesus-creed-david-o-9.html","title":{"rendered":"Law at the Jesus Creed: David Opderbeck on Social Contract"},"content":{"rendered":"

\"Lawbook.jpg\"<\/a><\/span><\/p>\n

The Christian Tradition and a Social Theory of Contract<\/p>\n

“Freedom to contract” is one of the pillars of libertarian economic theory (the other being “protection of private property rights”).  The principle of freedom to contract suggests that 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.  <\/p>\n

Many conservative Christians take an essentially libertarian approach to freedom of contract.  <\/span>For example, the Acton Institute for the Study of Religion and Liberty<\/a>, a think-tank with strong Catholic ties, states on its website<\/a> that “[p]rivate property and the freedom to contract are fundamental human rights, as each person is entitled to enjoy the fruits of his labor.”  <\/span>Theological grounds for this perspective include the inherent worth of the individual as created in the image of God, and the sinful tendency of people with governmental power to abuse that power.<\/p>\n

What do you think:  <\/span>are the right to private property and the freedom to contract fundamental human rights?  <\/span>Is the notion that “each person is entitled to enjoy the fruits of his labor” theologically justified?  <\/span>What would a non-libertarian Christian theory of contract entail?<\/b><\/p>\n


\n<\/p>\n

In my judgment, these are valid notions, but they are not the whole story.
\n In his chapter “The Christian Sources of General Contract Law” in the
\nsplendid Christianity
\nand Law:  an Introduction<\/a>, pioneering law-and-religion scholar Harold
\nBerman traced Western contract law to its medieval canon law roots.  As Berman
\nexplained:<\/p>\n

In subsequent centuries, many of the basic
\nprinciples of the canon law of contract were adopted by secular law and
\neventually came to be justified on the basis of will-theory and party autonomy.
\n It is important to know, however, that originally they were based on a
\ntheory of sin and a theory of equity.  Our modern Western contract law did
\nnot start form the proposition that every individual has a moral right to
\ndispose of his property by means of making promises, and that in the interest of
\njustice a promise should be legally enforced unless it offends reason or public
\npolicy.  Our contract law started, on the contrary, from the theory that a
\npromise created an obligation to God, and that for the salvation of souls God
\ninstituted the ecclesiastical and secular courts with the task, in part, of
\nenforcing contractual obligations to the extent that such obligations are
\njust. (Christianity and Law, at 132).  <\/p>\n

This broadly social notion of contracts was modified, Berman noted, during
\nthe Puritan era.  The Puritans’ strong notion of total depravity made them
\nless willing to place the authority to determine which obligations are “just”
\nin the hands of a magistrate.  Moreover, the Puritans’ emphasis on order
\ninclined them to seek the meaning of contractual documents in the literal words
\nof the document rather than in an overarching contractual hermeneutic of
\njustice. <\/p>\n

However, even for the Puritans, “private” contracts were social obligations
\nwithin the all-inclusive fabric of God’s covenantal relationships with people.
\n Private contractual relations were not really “private” — they were
\ncovenantal relations between people who were also bound in covenantal relation
\nto God.  As Berman explained, <\/p>\n

the Puritan stress on bargain and on calculability
\n(“order”) should not obscure the fact that the bargain presupposed a strong
\nrelationship between the contracting parties within the community.  These
\nwere not yet the autonomous, self-sufficient individuals of the
\neighteenth-century Enlightenment.  England under Puritan rule and in the
\ncentury that followed was intensely communitarian. (Id. at 140).  <\/p>\n

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

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

What do you think of Berman’s
\nhistorical analysis?  <\/span>How might we
\nconstruct a “third way” Christian theory of contract, property and liberty?<\/b><\/p>\n

 <\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

The Christian Tradition and a Social Theory of Contract “Freedom to contract” is one of the pillars of libertarian economic theory (the other being “protection of private property rights”).  The principle of freedom to contract suggests that government should avoid regulating private transactions because the individual parties to contractual agreements are in the best position…<\/p>\n","protected":false},"author":70,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-5731","post","type-post","status-publish","format-standard","hentry","category-gospel"],"yoast_head":"\nLaw at the Jesus Creed: David Opderbeck on Social Contract - Jesus Creed<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.beliefnet.com\/columnists\/jesuscreed\/2010\/03\/law-at-the-jesus-creed-david-o-9.html\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Law at the Jesus Creed: David Opderbeck on Social Contract - 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