When I first began using computers, they were things that were housed in special rooms and attended by highly trained system operators, while I and hundreds of other programmers were connected to them by terminals and allowed to perform a narrow range of carefully delimited tasks. Many of the things I did were actually done by a sysop at my request; I wasn’t expected to know how to do them, much less understand the difficulties and risks involved in any of them.
When personal computers first began to appear on people’s desks, I thought: Well, this is a marvelous thing. Somehow they have managed to eliminate the complexities of computer operation that were handled by sysops, making it safe to put the entire computer in the hands of a mere user. But of course it turned out that no such thing had happened; the risks and difficulties were still there, only thinly veiled, and personal computers crashed and files disappeared with a regularity that would have brought our old sysop-maintained computer lab to its knees.
What surprised me, though, was that people didn’t run screaming back to the old arrangement. The lure of one’s own personal computer was too great, as well as the cost savings to the business providing them, and so we learned to muddle through, shouldering responsibilities we were in no way competent to bear, scrambling to thread our ways through the mysteries when something went wrong.
To me this development is one small but telling example of how modern living has progressively forced us to become omnicompetent, able to assume responsibility for any situation that comes our way, no matter how complex, no matter how little background we have in the matter. Of course as this trend has progressed we haven’t actually become omnicompetent. Modernity is not churning out renaissance men; quite the opposite. What has actually happened is that we have accepted responsibility for matters in all areas of our lives that we are unqualified to carry out. And qualified or not, when things go wrong it is we who are at fault, not those who imposed those responsibilities on us.
Debbie and I have bought and sold many houses, which means that I have signed many contracts whose implications I didn’t come close to understanding. In fact, I would say that I didn’t even read those contracts in any meaningful sense, since to give proper weight to the agreement I was entering into, pledging to spend thirty years paying back hundreds of thousands of dollars in regular installments, would have required months of study and reflection on my part. I certainly read through the words on the paper, but my willingness to sign was based much more on my understanding of how the world worked in general; in this case, I knew that people bought and sold houses, lived in them, and used part of their paycheck to make the regular payments. I figured I could do those things too, and so I signed.
The one time we followed the obligatory recommendation to have a lawyer look at a contract was very early on in our marriage, when we were selling our house in Boston. We wanted to have him look at the listing contract with the realtor, something we thought was thoroughly standardized and straightforward, so much so that it felt a bit silly to be paying for a lawyer’s time to look at it. But we got a recommendation for a lawyer, made an appointment, took the train and subway to downtown Boston, and walked into some tall office building to meet with him. He didn’t say much, just took the contract from us and picked up a pen.
Then he began to methodically cross out clauses in the agreement. And when he came to one particular clause, he shook his head, murmured “I can’t believe they’re still putting this one in here,” and crossed it out. I asked him what was wrong with that clause; he said that if the realtor found us a buyer and we accepted his offer, it would have obligated us to pay the realtor’s six percent fee even if the deal fell through. I was stunned—but not as stunned as when I handed the thoroughly marked-up agreement back to the realtor, who signed it without comment.
I’d like to say that this was one time when I had done well in shouldering my responsibilities, but in fact all that had happened was that for I had gotten a glimpse of how profound my ignorance was with respect to the agreement I was entering into. The lawyer had saved me from a few traps (that I assumed were commonly placed there by realtors, given how easy it was for him to find them), but my understanding of them wasn’t much deeper, and I had no idea what other sorts of dangers might remain in the document I signed.
Which leads me to wonder—am I truly competent to strike a legal agreement with anyone, particularly a party who has a much more sophisticated understanding of contract law and does not have my best interests at heart? Aside from whether it is even possible to give my word that I will adhere to the terms of a contract I don’t understand, should I enter into such an arrangement? Should I be promising to fulfill the terms of an agreement when I don’t fully understand those terms?
In trying to figure out how we arrived at this point, I stumbled across a blog post which spoke to the matter more directly than I ever could have hoped. The writer, a Christian but not (I think) a conservative Christian, begins with this (all emphasis is added):
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.
Not only does this description of contracts seem to describe modern circumstances accurately, it zeroes in on what I think is the rottenness at the core, namely that individuals are in the best position to judge the value of the bargain. Clearly, they are not, and you can sift through the wreckage of the unfolding mortgage crisis for endless anecdotes that bear this out.
The writer goes on to point out that things weren’t always this way:
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 promise 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 obli
gations to the extent that such obligations are just.
Wow. This is almost unimaginable today, but it fits neatly with what I wrote about modern business practices as an alternative to neighborliness:
What the people of DeSmet have forgotten, along with the rest of us, is that business practices were explicitly developed as an alternative to neighborliness, not an elaboration or enhancement of it. Karl Polanyi points out in his book The Great Transformation that until recently business trade was a relatively limited endeavor, taking place between towns and cities, leaving the countryside (and most of the population) largely unaffected. The reason was that there was no reliable means of enforcing business arrangements with villagers; until recently, a business dispute with a customer in a village had to be settled in that hard-to-get-to village, before a council of elders that might very well decide in favor of the villager if it was determined that the deal was somehow unfair to him. Business practices, especially enforcable legal contractual obligations, were developed specifically so people could conduct transactions with people who weren’t their neighbors.
What I didn’t make clear in that paragraph (because I didn’t understand it then) was that the change was not the introduction of enforceable contractual obligations, but the change from basing their enforceability on justice to basing it on the letter of the agreement, just or unjust.
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.
It pains me to learn that my beloved Puritans were responsible for the change, but it doesn’t surprise me, since they are guilty of planting a number of seeds whose destructive nature wasn’t obvious at the time. And this one wasn’t obvious, given the nature of their community.
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 the 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.
Really, the Puritan innovation didn’t put a brake on wickedness, it just shifted the potential for wickedness from the magistrates to the parties writing the contract. (Or, more cynically, the parties writing the contract could now join the magistrates in being wicked.) But what put a brake on overall wickedness was the strength of the community that was witness to the proceedings and with whom the participants had to live afterwards.
No surprise, then, that Enlightenment thinking took this innovation and turned it into today’s massively unjust system:
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.” These Enlightenment ideas “broke many of the links not only between contract law and moral theology but also between contract law and the communitarian postulates which had informed both Catholic and Protestant legal traditions.”
But the writer ends on a hopeful note:
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.”
I’m eager to get hold of a copy of Christianity and Law: an Introduction for the same reason I was excited to read Allan Carlson’s Third Ways—both of them remind us that society has known other, better ways of approaching problems that modernity has proven itself a miserable failure at handling.