Theologians and Contract Law: The Moral Transformation of the Ius Commune (ca. 1500–1650)
By Wim Decock
Lutheran Theology and Contract Law in Early Modern Germany (ca. 1520–1720)
By Paulo Astorri
The two intimidating looking studies that form the basis of this review essay might not appear to be promising territory for students of Reformation theology. They offer highly detailed descriptions of the development of contract law in the early modern period, a subject that an exasperated David Hume, himself a sometime law student, once called “an infinitely complicated” idea, for which even a “hundred volumes of laws, and a thousand volumes of commentators have not been found sufficient” to define. For students of legal history, then, these carefully researched studies are a tremendous resource in that they condense, if not thousands, then certainly several hundreds of closely argued Latin volumes by Roman Catholic and Lutheran commentators into relatively accessible synthetic and historical accounts. But, we may ask, what has Reformation theology to do with early modern developments in contract law? We will suggest these two volumes together demonstrate at least three important connections.
First Important Connection
Tom Holland’s 2019 best-seller Dominion: The Making of the Western Mind has been widely discussed in recent years. Holland’s argument is that, historically speaking, without Christianity, the values that contemporary Western secular liberals hold dear would not have developed: individualism, human rights, progressivism, and secularity itself. To make his case, Holland brilliantly weaves together the work of a number of other scholars, such as Brian Tierney on natural rights, or Harold Berman on law and religion more generally. The two studies discussed here are not referenced by Holland, but they provide further strong support for his thesis that Christian values transformed the classical inheritance.
In the medieval period, civil law across most of Europe was based on Roman law, as collected by the Emperor Justinian in the sixth century. Roman law offered what Decock calls a “closed system” of specifically named contracts. Contracts outside of this were only enforced where one party had already performed their side of the contract (such as an orange seller giving his oranges to his customers) or where a solemn agreement (stipulatio) had been made. The Roman principle can be summarized as stating that “naked” pacts, those resting only on mutual consent, were not legally enforceable.
However, alongside the civil law there was also the canon law, the evolving law of the church made for use in ecclesiastical discipline. These two legal traditions were in some tension, including in the area of contract law. On the basis of the teachings of the Sermon on the Mount, which were understood as an exposition of the law of nature that directed all human beings to a life of mutual love, the law of the church made precisely the opposite judgment to Roman law: all agreements or pacts, however naked, were binding.
Medieval civil lawyers, as good Christians, sought to use the arts of scholastic exegesis to interpret Roman law in light of the teaching of Christ. But by the beginning of the sixteenth century, jurists were beginning to argue that the civil law needed to be brought explicitly into line with the demands of natural law, as understood from Scripture (with some help from Aristotle). In fact, this is what happened, starting in Spain. In a number of authorities across Europe, the civil law “swallowed” the canon law principle that if the parties (or even just one party) willed to enter an agreement, the agreement should be considered legally binding. This had far-reaching implications. In effect, every individual became a sort of private legislator, constructing, on the basis of their mere will, binding agreements that the state was expected to enforce. Today, the doctrine that a contract is valid on the basis of mutual consent is a staple of international contract law. But its roots can be found in the specifically Christian understanding of the requirements of natural law.
Wim Decock’s study focuses on the contributions of a number of early modern Spanish scholastic theologians. These theologians provided the theoretical foundations for these developments in contract law. Initially they were Dominicans, such as Francisco de Vitoria and Domingo de Soto, but later the impetus mainly came from Jesuits, such as Francisco Suárez and Luis de Molina. Decock repeatedly draws attention to the importance of the religious framework within which these theologians operated. Following Augustine, the church taught that there could be no salvation for those who had made illegal profits unless they made restitution. As business practices became increasingly sophisticated in the sixteenth century, priests hearing confessions needed ever more detailed guidance in order to give absolution. As a result, some of the most important discussions of contract law were found in manuals for Jesuit confessors. In this arena, keeping a clean conscience before God was critical, far more than the looser dictates of civil magistrates. Here the appeal to natural law was not a sign of abstract secularizing thinking, but an integral part of the church’s task of equipping people to stand in the Last Judgment. Before God’s all-seeing eye, simple promises bound the conscience just as much as oaths. As Decock says, “The view sub specie conscientiae allowed the Western legal tradition to depart from the classical legacy and radically re-think the foundations of contract law” (146).
While Theologians and Contract Law is part of a wider rediscovery of the central role of Roman Catholic scholastics in providing the theoretical foundations of modern contract doctrine, Decock’s study is particularly valuable for the wider theological connections he makes. Decock shows that the Spanish scholastic theologians analyzed the proliferation of contracts within the context of an understanding of the human person as made in God’s image, with the right to have dominion over the goods of the earth, and the freedom and responsibility to order his own will, and this in order to reach his eternal destiny. The result was a philosophical-theological synthesis in which contract law became “part of a broader theological story about man, his goods and the divine telos of life on earth” (168).
Second Important Connection
Two questions arise as we turn to consider the relevance of this research for Reformation theology. First, if the essentials of modern contract law emerged as a result of the pressure applied by the demands of the Roman Catholic confessional, then what of the relationship of Protestant theology to these legal developments? And second, if the Spanish theory of contract law was part of a wider Roman scholastic “theological story,” then what of the relationship between contract law and the all-encompassing theological story that would develop in certain quarters of the Reformation traditions: that is, covenant theology?
We take the second question first. The suggestion that an increasing emphasis on contractualism in legal thought might have contributed to the rise of federal theology was first made at least a hundred years ago in Germany, and repeated by Perry Miller at Harvard in his classic study of The New England Mind (1939). In 1970, building on Miller, the Scottish theologian J. B. Torrance charged federal theology with falling into the sin of late Judaism. Torrance felt that in the hands of legalistic federal theologians, the biblical and strictly unconditional covenant of grace had been recast as a conditional contract, even being called a “bargain.” Noting that important developers of the federal tradition in Scotland—such as David Dickson, James Durham, and Samuel Rutherford—were at the same time highly active in promoting the National Covenant and Solemn League and Covenant, Torrance suggested that their theology was more influenced by “certain socio-political concepts of covenant than it probably ever realised” (see James B. Torrance, “Covenant or Contract? A study of the theological background of worship in seventeenth-century Scotland,” Scottish Journal of Theology 23 [February 1970], 61).
While Torrance’s sharp distinction between a gracious covenant and a conditional contract has now long passed its sell-by date, it is notable that studies of the development of federal theology among the Reformed since have tended to stress that the Reformed doctrine of the covenant had its own, biblical inner logic. The question of covenantal conditions continues to be a delicate topic, as though Torrance’s ghost might appear to spoil the federal party.
Decock’s study of early modern contractualism, though, suggests that many of these worries might be caused by a classic example of anachronism. While terms like “bargain” and “contract” might seem to us, in the twentieth and twenty-first centuries, as being obviously loaded with ideas of self-interest, competition, and profit, for the early modern scholastics these terms meant something quite different. For the Catholic theologians, making contracts was meant to be an exercise in commutative justice in a way that would not be recognized by Roman or modern Western courts. Although they understood that the market was a kind of contest, overall the moral theologians still judged it sinful to enter into a contract that was not characterized by “fairness in exchange,” a “just price,” or “equity” for both parties. As Decock puts it, the theologians he surveys, ever anxious to protect the souls of millions of people from falling into sin, taught that “contracts should not amount to zero-sum games” (601).
However, returning to the first question of this section, given the very scholastic and Roman roots of the early modern reformation of contract law, perhaps Protestant theologians simply ignored these developments, even as they sidelined the practice of confession and, as humanist lawyers advocated for a return to Roman law, wiped it clean of its scholastic cobwebbing.
Here is where Paulo Astorri’s volume on the relationship between Lutheran theology and contract law is so helpful. Astorri’s work is a revision of his dissertation, completed under Decock’s supervision at Leuven. Lutheran theologians do seem to have been less systematically interested in the study of contract law, and so Astorri takes a more sweeping approach than Decock, looking at catechetical materials all the way through to jurists’ rulings, from Martin Luther through to early eighteenth-century responses to the secular natural law theories of Samuel Pufendorf. Astorri acknowledges that the Lutheran doctrine of salvation was the polar opposite of the Catholic teaching. But this did not mean that theologians could step away from jurisprudence. Although Lutherans believed they were saved through faith alone and not by keeping the law, Luther taught that one’s thanksgiving for salvation ought to flow into a life of charity toward one’s neighbor. And so, while Roman Catholic moral theologians had to help priests decide whether to bind or to loose sins against justice, Lutheran theologians still had to help pastors guide their flocks on how best to keep the command to have “no debts outstanding, except to love one another” (Rom. 13:8). And natural law remained the benchmark for living a life of love, even in commerce. As a result, Lutheran theologians often provided similar guidance to their Roman counterparts, accepting, for example, the signature canon law principle that naked pacts were binding and the importance of equality in exchange. Such was the positive view of contracts justly made and kept, that Luther’s successor Philip Melanchthon could teach that they were daily reminders of God and even of the gospel.
These volumes make it clear that anyone hoping to understand how the theological story of federal theology emerged needs to engage with the theological reformation and celebration of contracts in the sixteenth and seventeenth centuries—on both sides of the Tiber.
Third Important Connection
We mention briefly a third area of obvious interest from these studies, before offering some recommendations. Both of these volumes examine cultures in which theologians and jurists were mutually dependent on each other as they sought to build a more Christian society. In these cultures, theologians could not avoid offering counsel on morally tricky areas of business and life. The numerous examples contained in these volumes of pointed discussions over the application of the commandments against theft or bearing false witness, for example, are a valuable resource for contemporary moral theology.
These are some of the questions of contractual justice and fidelity discussed by early modern moral theologians. Are sellers obliged to mention defects in their wares or does the responsibility belong to buyers to inspect them? How about if the sale is of possibly toxic debt? Conversely, are buyers obliged to point out if they know that a product is being heavily underpriced by the seller or are they allowed to take advantage of the seller’s mistake? Is a Christian allowed to profit from inside knowledge of future market conditions? Should sex workers who become Christians be counseled to keep their ill-gotten gains or to follow the example of Zacchaeus and give it to charitable causes in order to demonstrate repentance? If the former, does this mean that contracts for sexual services ought to be considered legally enforceable in a Christian society?
Astorri’s book is particularly interesting for its clear analysis of the grounds on which Lutheran theologians completely revised the medieval prohibition against lending at interest for profit (“usury”). Astorri includes a fascinating account of the dispute at Regensberg over the new theology of usury that highlights the interactions between canon law, developing Lutheran theology (led by Jacob Andreae), and Lutheran lawyers.
Alongside these practical questions, there is also the question of method in moral theology. Decock notes how little Roman Catholic moral theologians drew on Scripture to formulate their doctrines. The opposite was true for Lutheran theologians, who were mostly derivative of the Catholic scholastics for the analysis of contract law, but made up for it in their attempts to ground those doctrines biblically. Pressing slightly further, Astorri’s work highlights that below the surface there were in fact two different “spirits” in Lutheran moral theology. Some Lutherans were more focused on scriptural sufficiency, which—given that Scripture did not speak into all the areas of contract law, such as when exactly a contract becomes binding—meant allowing a greater role for the magistrate in binding conscience. Others, like Balthasar Meisner, were closer to the Roman moral theologians in being more confident about using human reason to develop detailed guidance for troubled consciences from the basic principles of natural law, as expounded by Christ.
These bulging volumes show clearly the intertwining of theology and contract law in the early modern period; and for that reason, ought to be taken seriously by those interested in Reformation theology. They offer a fascinating picture of a time when the doors of the church led quite directly into the colorful world of the early modern marketplace. If the details are sometimes too much for non-lawyers, good structure and repeated summaries throughout the books help to make them accessible. However, there is no doubt that these are both rather technical and at times somewhat dry academic works.
As publications by two different Brill imprints, they are also rather expensive. While we will leave to one side the question of whether a just price is being charged for these volumes, those without access to them might need to consider alternative options. Those interested in the practical results of early modern Roman Catholic discussions could consider Decock’s translation of some of the Dutch Jesuit Leonardo Lessius’s work, titled On Sale, Securities, and Insurance (CLP Academic), or Hugo Grotius’s On the Rights of War and Peace (various translations), who produced his own creative synopsis of Lessius and others and transmitted it to Protestant audiences. For a broader overview of the place of medieval and early modern contract law in relation to modern doctrines, James Gordley’s The Philosophical Origins of Modern Contract Doctrine (Oxford) remains the best discussion. As per the title, Gordley’s emphasis is on the role of Aristotelian philosophy more than distinctively religious influences, and for those we have to look to the work of Decock and Astorri. Decock has a useful summary of recent work in this area in The Oxford Handbook of European Legal History; but for the details of the various debates, one will need to return to these dissertations (of which Astorri’s remains embargoed).
However, given the value these volumes contain for historical, ethical, and systematic theologians, there is no doubt that they both belong in the collection of every library wishing to facilitate cutting-edge research into the intricate relationship between law and theology in the decades after the Reformation.
Samuel Bostock is an assistant minister at Bloomfield Presbyterian Church in Belfast.