Covenant and Contract

I have been working on this post for a while, and I have finally given up (for the time being) on trying to make my thoughts more coherent. So be warned, what follows involves some rather rambling discussions of legal theory and legal history. I disclaim any warranties explicit or implied. Read at your own risk. Void where prohibited.

One of my main academic interests is contract law and contract theory. As a result, I am fascinated by the theological idea of “covenant.” Generally, when people talk about “covenant” and “contract,” they distinguish them by saying that “covenants” involve spiritual things, while contracts are merely commercial transactions. They then go on to describe a covenant as a set of recipricol promises. We promise X and in return God promises Y. I tend to think that this whole approach to the question is wrong.

A bit of legal theory to start with: Sir Henry Sumner Maine was a 19th century legal historian and is also often thought of as one of the founders of anthropology. Maine wrote in an era in which historians offered big, sweeping meta-theories of historical change. Today’s historians are less ambitious (or perhaps simply less fool hardy), but one of Maine’s theories is very useful for thinking about covenant. According to Maine, the progress of the law has been from status to contract.

By status, what Maine meant was a set of legal obligations that are tied to particular social positions and are not open to variance by the parties. For example, lord, vassal, heir, husband, wife, parent, child, tenant, debtor, creditor, bishop, cardinal, senator, knight, plebe, patrician, etc. are all examples of status. By contract, Maine meant something like a set of legal obligations that are defined by the agreement of the parties and are variable according to their will and agreement. For example, the complex set of rules that govern your use of a credit card are an example of a contract. There is no inherent, off-the-rack concept of “credit card holder” that defines your rights and obligations, and if you read the fine print of various agreements, you will notice that the rights and obligations can vary considerably from card to card.

Maine’s simple story of progression from status to contract, like most of the 19th century stories of progress, has been largely abandoned as untenable. However, one striking thing is the very late emergence of the idea of contract. For example, the idea of reciprocal binding promises did not emerge in our law until the 19th century, and it remained doubtful as late as the turn of the 20th century. With the exception of the Romans (who had a remarkably flexible form called the stipulatio), ancient societies do not seem to have had much of any concept of contract. Thus, when we read about something like the covenant between God and Abraham, it is anachronistic in the extreme to think about it as a contract.

So what was it? Well, it was a status. Generally, in the ancient world long term voluntary obligations were created through status. For example, if I wanted to make a treaty with the neighboring chieftain, we would not exchange promise. Rather, we would create some status relationship between us, generally via adoption (I might become his son) or marriage. A closely related kind of status was that between an overlord and a vassal. This generally created reciprocal obligations of protection and obedience. If you look at the covenant between God and Israel, it basically mirrors this relationship.

In part, our word “covenant” traces this distinction between status and contract. In its original legal sense, a covenant was a promise made under seal. This sounds much like a contract, ie a voluntary obligation whose contours are defined by the will of the party. However, it didn’t actually work this way. Covenants generally took the form of a promise to pay money. This promise created a status relationship, since the promisor became the debtor or the promisee became a creditor. This relationship gave rise to a host of obligations that were unrelated to the content of the parties agreement. It wasn’t until much later that covenants began to take the form of contracts, this development was eventually completely cut off by a decision known as Slade’s Case, which required the common law to begin again the groping toward some concept of contract.

There is some language in modern revelation that sounds like contract – e.g. “I the Lord am bound when you do what I say, but when you do not what I say, you have no promise” – but by and large, covenant continues to be a status relationship. For example, if you look at section 84, the “Oath and Covenant of the Priesthood,” the promises of the Lord are not defined as free standing obligations. Rather, he notes that those who accept and magnify his priesthood become his heirs and sons. Indeed, if you look at the language used in scripture and in the temple to define the duties and rights of our covenants with the Lord, three or four images constantly reappear. First, there is the image of children; we become sons and daughters of God. A variation on this is the idea that we become adopted into the House of Israel. Second, there is the image of heirs; God promises that we will inherit all that he has. Third, there is the image of priests and priestesses. Finally, there is the image of kings and queens unto God. I take the phrase “unto God” to mean something like we become lesser kings owing fealty to a higher (perhaps High) king.

So what does all of this logic chopping illustrate. Maine’s notion of contract is tied to a particular vision of society and of persons. In contracts, the identity of the contractors is more or less irrelevant. Each is thought of as an autonomous and self-defining agent. Society is seen as the totality of the individual contracts of these autonomous agents. The pattern of society is emergent and is secondary to the decisions of individuals. The logic of status is quite different. It assumes that people are inherently related to one another. Who we are is in large part defined by what status we have vis-a-vis others. It denies that these relationships are a matter of self-definition or choice. Rather, there is a pattern of society and the pattern is logically prior to the individuals that inhabit it.

Covenant as status, rather than contract, thus implies an integrated divine economy. It is one that is beyond our ability to create or alter. Furthermore, within the divine economy we are inherently related. To reject the economy means that one is without status, in a sense without meaning. Furthermore, this is a vision of the divine economy that would be radically altered if covenants are reconceptualizd as contracts.

12 comments for “Covenant and Contract

  1. Greg
    January 12, 2004 at 2:56 pm

    Great post Nate. And I think it is especially interesting in juxtaposition to Claudia’s mention ( of Richard’s remark that the problems of the family are tied in part to capitalism.
    By way, what is untenable about Maine’s story? I had thought that ‘status to contract’ was still an orthodox, if oversimplified, view.

  2. January 12, 2004 at 3:03 pm

    Interesting comment Greg. Certainly the modern way of viewing family tends to see an economic contract as founding marriage. A lot of the debates going on at the moment only make sense if we view marriage as a contract. Remove that paradigm and the entire discussion changes.

    I’d be interested hearing what Nate thinks the implications of covenant vs. contract are for marraige. It seems to follow that gender “roles” become more defined not less.

    The danger, as I wrote somewhere here, is that the roles/status we find in religious texts and ritual seem tied to the culture of the ancient world. Yet that culture seems somewhat problematic and dated to the modern mind. The restoration restored a lot of those elements along as “restoring” or revealing elements that are more important to the modern mind. (i.e. a more “thing” based discussion of spirits and heaven in line with the modern paradigms of our society) The difficulty is in negotiating this dual nature of the ancient world and the modern world we find in Mormonism…

  3. Nate Oman
    January 12, 2004 at 3:05 pm

    It is and it isn’t. One problem is the Roman stipulatio, which seems like a pretty dang contractual kind of thing. The stipulatio’s after life problematizes Maine’s progressive story. For example, the medeival English legal action of covenant seems to be an Anglicized version of the Roman stipulation. However, the common law seems to “statusize” covenant in terms of debt. (Note: not everyone thinks of debt as a status, but I think they should.)

    More problematic are some of the other progressions that Maine sets up. For example, he thought that legal change (that is alternations in substantive rules) proceeded first by legal fiction, then by equity, and then by legislation. His typology is very powerful and useful (those are the three stratgegies employed), but his progressive story is simply wrong, even in the context of Roman law, which is where Maine developed it.

  4. Nate Oman
    January 12, 2004 at 3:10 pm

    I tend to agree that the movement has been to view marriage more as a contract and less as a status. Our contract law has now developed to the point where it is really very flexible. It seems to me that the marriage wars only retain their meaning if we view marriage as a kind of status. Otherwise the legal shape of marriage is meaningless; you can simply get all the benefits you want via contract. I think that folks fight about marriage these days laregly because it remains (for all the battering that it has recieved) the number one social legitimator of sexual behavior. The battles over marriage are thus largely battles over the legitimacy of certain kinds of sexuality (broadly defined). These battles are meaningful, however, only so long as marriage is a status, that is a SOCIAL institution, rather than simply the terms of a private contract.

  5. January 13, 2004 at 9:37 am

    Nate: This is very, very interesting. Thanks for posting it.

    Although the status-contract dichotomy is clever, it doesn’t appear to make for good history, nor is it very helpful in analyzing relationships. As you may know, it has sometimes been important in discussions of fiduciary duty, which interests me. For example, the employment relationship (“master-servant” relationship in the older parlance) is a fiduciary relationship, with the “servant” owing a duty of loyalty to the “master.” Some law-and-economics scholars have argued that these fiduciary obligations are essentially contractual, regardless of whether the parties bargained over them. Fiduciary duties are imposed by courts, and they become part of the “contract” by default. Can’t this sort of argument be used to make all status-based obligations into contractual obligations?

    Take another example, your illustration of debtor and creditor. You say the the creation of this relationship “gave rise to a host of obligations that were unrelated to the content of the parties agreement.” Why do you limit the “content of [their] agreement” to that which has been expressed?

    If I am right about the foregoing, then the Gospel covenants that you describe might just as easily be described as mandatory default rules. That is, they are rules that become part of the contract between God and His supplicants. Unlike fiduciary duties, these rules may not be changed by agreement (thus “mandatory”), but that does not make them any less a part of the agreement. Perhaps instead of status-based relationships, we should think of these covenants as adhesion contracts.

    (P.S. I am off to a meeting, so I don’t have time to edit right now. I will just post this and risk the consequences.)

  6. nate oman
    January 13, 2004 at 9:49 am

    Gordon: it depends on what you mean by “default rules.” Generally speaking, I think of default rules as referring to gap filling rules in contract that can be expressly varied by the consent of the parties. I don’t generally think of default rules as including rules that are not open to variation. Consider the status of debtor and creditor. This is often a voluntarily created relationship, but sometimes it is not (think tort creditors). As a creditor I have certain collection rights (ie I can attach and sell your property). Prior to the advent of Article 9 of the UCC (security interests in personal property), I could not vary these rights by contract. Even now, my ability to do so is sharply limited. Likewise, a debtor has certain rights, most notably bankruptcy, that cannot be varied by contract. (Absent rather exotic devices like asset securitization you cannot bargain out of bankruptcy). Now many law and econ scholars think that parties ought to be able to change these rules by agreement. Maybe they are right. However, they have not yet gotten their views enshrined in the law.

    In part I think that some confusion can arise by conflating the idea of voluntary obligation with the idea of contract. However, some status relationships (marriages) are can be voluntarily entered into, even if there contours are not alterable (or at least didn’t use to be alterable) by agreement.

  7. January 13, 2004 at 10:57 am

    OK, back from my meeting and about to pack for the airport, but a couple of quick points. I agree that the term “default” rules implies an ability to contract around the rules. So the term “mandatory default rules” does not make much sense, though I have seen/heard people use it. I usually would say simply “mandatory rules” (and would have if I had re-read the comment before posting).

    The point remains that mandatory rules become part of the governance structure of the relationship. Is opting into a relationship governed by mandatory rules any different from entering into a binding contract for those same rules?

    Your point seems to be that we have no real choice and no opportunity to shape our relationship with God. Either we enter the relationship on God’s terms or we have no relationship. It seems to me that this is susceptible to characterization as an adhesion contract, that is, a standard-form contract offered on a take-it-or-leave-it basis with no opportunity to bargain over terms. Of course, “adhesion contract” and “bad contract” are not synonymous. The fact of standardization may simply be a reflection of the laws by which our eternal progress is regulated.

  8. Nate Oman
    January 13, 2004 at 11:35 am

    Gordon, I think that I am understanding what you are saying. Here is why I think that the idea of status works better than a contract of adhesion. My point about status is more than simply the idea that we don’t vary the terms of the relationship. Rather, it is the idea that the relationship is nested within and takes meaning from a whole pattern of social context. Think about ancient Roman society. You had a very complicated structure of social roles — plebe, patrician, knight, senator, senator, consul, privatus, pater familias, mater familias, praetor, citizen, non-citizen, slave, freedman, etc. Each of these roles was integrated into a complete social system and took its meaning from the whole in which it was embedded.

    A contract of adhesion, by contrast, remains an essentially bilateral relationship between promisee and promisor and is defined by their agreement. The only reason that we add “of adhesion” is because we have the suspicion that there is some power imbalance that allows one party to dictate the terms. However, the very fact that a party dictates terms suggests that the obligations are essentially individualistic.

    The reason that I find status such an interesting way of understanding covenant is that it denies this indvidualistic premise of the relationship. In status based systems you become defined not by the terms that you autonomously choose — or that another autonomously chooses and then “forces” upon you — but rather by the nexus of social relationships in which you find yourself.

  9. January 13, 2004 at 12:49 pm

    That is very helpful, Nate, but I would like to press you a little. You like the idea of status as a way of understanding covenants because it suggests that we are “defined … by the nexus of social relationships in which” we find ourselves. But isn’t the only social relationship that matters here the relationship between an individual and God? I suppose the relationships that others form with God have some influence on us, but those relationships are all on the same terms as our own. It seems to me that the divine economy of which you speak is not as rich as ancient Roman society. It’s more like McDonald’s and its franchisees.

  10. James K Van Drunen
    July 5, 2004 at 8:00 am

    I have been working on a theory regarding covenant vs contract as it applies and pertains to a wide variety of human relationships. If you are interested in pursuing a dialoge on the matter, please call me at 708-906-6060. I would be pleased to visit with you “in person”.

    James (Jim) Van Drunen
    South Holland, IL

  11. ruby
    December 24, 2004 at 11:07 am

    can an omani citizen marry non omani girl

  12. January 14, 2005 at 11:19 am

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