THE JURISTIC ORIGINS OF SOCIAL CONTRACT THEORY Antony Black This article seeks to explain the rise of social

contract as a way of thinking about government. 1 By social contract I mean the view that human authorities are established by agreement with their subjects for specific tasks, that their legitimacy depends upon fulfilment of these tasks, and that such agreements may be enforced by clear, defined procedures, as one would enforce a contract in private law. Contracts, it may be noted, are a specific type of oath or promise in that by their nature they are conditional: the performance of A by x is made conditional upon the performance of B by y. Contract became a characteristic way of justifying political actions, in particular resistance to superior authority, in later sixteenth-century Netherlands and France. From the seventeenth cen- tury onwards it played an important part in the way political authorities in general were defined and justified, and their powers in many cases delimited. It has proved to be one of the ideas from that time whose vitality is still evident today. We need to consider here both the development of elaborate argument by theorists, and the diffusion of a general contractarian ideology amongst the political classes of the time. Both this popular diffusion and the philosophical elaboration coincided with the further and decisive secularization of political argument in the early modern period; they were one of the principal means by which this took place. It is important, therefore, to identify as clearly as possible the way these ideas developed, including their origins. At present several causal explanations for the rise of contractarianism are on offer: first, that the political contract was implicit in feudal relationships between the king as lord and the barons as vassals. 2 It must be conceded that feudal arrangements provided a mental milieu and set of precedents by which conditional contracts between rulers and subjects could be justified. But, if this can form part of an explanation, it cannot stand on its own. Coronation oaths and feudal homage constituted specific acts between specific individuals, and were practised for centuries without ever being elaborated into a general theory about the role and scope of government. If feudal relationships themselves HISTORY OF POLITICAL THOUGHT. Vol. XIV. No. 1. Spring 1993 1 I would like to thank Martin van Gelderen for his numerous suggestions on passages relating to the Netherlands, and two readers for History of Political Thought for their patient comments. 2 As Marc Bloch said of vassal homage, ?transferred, as was inevitable, to the political sphere . . . this idea was to have far-reaching influence?, Feudal Society, trans. L. Manyon (London, 1961), p. 451. Cf. L. Buisson, Potestas und Caritas (Cologne, 1958), Ch. 6. Copyright (c) Imprint Academic 2010 For personal use only -- not for reproduction alone ? and they were anyway far less systematic than used to be thought ? were the origin, one would have expected contractarianism to have arisen much earlier, and in other places as well as north-western Europe. Secondly, it is true that Calvinism did to a considerable extent coincide with the diffusion of contractarian ideas of government among wider sections of the population. Aspects of Calvinist theology breathed new life into the language of ?coven- ant?. Yet there were significant differences between the type of covenant envisaged by theologians and believers as existing between God and the Christian, or again amongst congregations of believers, and the type ? or rather the various types ? of agreement envisaged by those developing political contractarianism in that same cultural milieu. Thus Calvinism too must be seen as part of the explanation, but not, even if we supplement it with ? feudalism?, the whole of it.

Thirdly, there were specific passages in authorita- tive moralists, notably Cicero, discussing contractual relations between a peo- ple and their ruler. 3 These, however, had been current in literary society for many centuries without giving rise to either a worked-out philosophy of political contract or a general belief in contractual agreements as defining the ruler?ruled relationship. Nevertheless, it may be conceded that such texts provided, when people wished for it, further legitimation for a contractual view of government. Lastly, C.B. Macpherson and others have suggested that developments in English political theory during the seventeenth century, which included the use of a social covenant, owed their inspiration to the ethos of a nascent capitalist bourgeoisie. 4 One might suspect a predilection for contract because this played such a prominent part in business life. Mercantile capitalism was indeed, it will be argued, extremely important, but one needs to be much more precise about the role it played. For there is no a priori reason why relationships or ideas prevalent in a certain domain of social life, whether these be patron?client relationships (? feudalism?), religious thought, or again economic transactions, should automatically ? ?sooner or later?, as people tend to say ? be applied to government as well. We need to rid ourselves more thoroughly of the implications of holistic social theory, notably of the Marxist variety. Contrac- tual relationships, especially among those engaged in commercial activity, seem to have been at least as much a part of Islamic society, without affecting 3 For example, Cicero, De Officiis, II.12. See Mario d?Addio, L?idea del contratto sociale dai Sofisti alla Riforma (Milan, 1954); J.W. Gough, The Social Contract (Oxford, 2nd edn., 1957), Ch. 3; M. Grignaschi, ?Le probl me du contrat sociale et de l? origine de la ??Civitas?? dans la scolastique?, in Commission Internationale pour l?Histoire des Assembl es d? tats, Anciens Pays et Assembl es d? tats, 22 (1961), pp. 65?85; Cary Nederman, ? Nature, Sin and the Origins of Society: the Ciceronian Tradition in Medieval Political Thought?, in Journal of the History of Ideas, 49 (1988), pp. 3?26. 4 C.B. Macpherson, The Political Theory of Possessive Individualism (Oxford, 1962). 58 A. BLACK Copyright (c) Imprint Academic 2010 For personal use only -- not for reproduction relations between political rulers and ruled, or people?s attitude towards these. They certainly never became a way, let alone ? as in parts of Europe ? the way of conceptualizing political relations. Again, contractual political relation- ships had existed prior to Islam (and perhaps even afterwards) in parts of the Nile to Oxus region (as Hodgson calls it), in the relation of ?emperor? to cities, without being translated into a dominant political norm. 5 The argument of this essay is that the missing link, which Europe had, was the law as this affected, and was developed for, certain political relationships and certain social organizations; that is, public or constitutional law. We may find in law and jurisprudence the link between feudal, or again capitalist ? the two were not always distinct ? social arrangements, on the one hand, and political ideology on the other. (The perception of Maine, that the theory of social contract ?though nursed into importance by political passions, derived all its sap from the speculations of the lawyers?, 6 seems to have been lost to sight.) I We may note, first, that fidelity, promise, oath and contract were strongly represented as moral ideas in pre-modern European culture. 7 They were embedded not only in feudal relationships but also in the culture of cities, guilds and even some villages, in which members commonly swore an oath to all fellow-members and/or to the authorities, as a condition of membership. 8 The sanctity of the promise, and therefore of all contracts, was inspired and strongly legitimated both by Stoic ethics as transmitted by the Roman world in Cicero and the Ancient Roman jurists, and by Christian teaching.

In medieval Chris- tian language the concept of fides (faith), fidelis (the individual believer) and fidelitas (faithfulness) was exceptionally strong; one of the commonest terms for the Christian community was universitas fidelium (the society of the 5 See Marshall G.S. Hodgson, The Venture of Islam: Conscience and History in a World Civilization, Vol. 1: The Classical Age of Islam (Chicago, 1974); Ann K.S. Lambton, State and Government in Medieval Islam (Oxford, 1981); Patricia Springborg, ?The Contractual State: Orientalism and Despotism?, in History of Political Thought, VIII (1987), pp. 395?433. 6 Sir Henry Maine, Ancient Law (London, 1861), Ch. 9 (this may have been a disparaging philosophical assessment rather than a historical statement). 7 See Paolo Prodi, Il Sacramento del Potere: il giuramento politico nella storia constituz- ionale dell? Occidente (Bologna, 1992). 8 See especially O.G. Oexle, ?Conjuratio und Gilde im fr hen Mittelalter?, in Gilden und Z nfte, ed. B. Schwinek per (Sigmaringen, 1985), pp. 151?213; Max Weber, The City, ed. and trans. D. Martindale and G. Neuwirth (New York, 1958), pp. 104?10 on the medieval European city as ?oathbound confederation?, Eidgenossenschaft, conjuratio (first published in Archiv f r Sozialwissenschaft und Sozialpolitik, 47 (1921), pp. 621ff.); P. Michaud-Quantin, Universitas (Paris, 1970), pp. 129?31. THE JURISTIC ORIGINS OF SOCIAL CONTRACT THEORY 59 Copyright (c) Imprint Academic 2010 For personal use only -- not for reproduction faithful/of believers). I ndeed the concepts of theological belief and of personal fidelity tended to become merged. All of this hugely enhanced loyalty in human relationships in general, as a social value. To the many well-known testimonies of this, one may add a passage from the Secreta Secretorum (a thirteenth- century compilation falsely attributed to Aristotle), which draws an explicit political conclusion: You know, then, that faith (or trust: fides) brings about the association of human beings, the dwellingplaces of cities, the community of men and the government of kings; faith enables strong places to be occupied, cities to be preserved, kings to rule. If you remove faith, all men will revert to their pristine condition, they will be like brutes and beasts. Beware, most faithful king, of breaking faith; keep firmly to your oaths and treaties, even if they are burdensome. 9 A much less recognized potential origin of social contractthinking was the civil (Roman) and canon jurists? writings on pacts, agreements and contracts (pacta, conventus, contractus). From the twelfth to the sixteenth century and beyond, there was an immense juristic literature on these subjects, with a flood of monographs De Pactis in the fifteenth century. 10 Contracts were clearly an area ripe for adjudication. In general, it is to be noted that jurists frequently lumped together contractual arrangements between a lord and a vassal (whether an individual or an incorporated town) and those between merchants, shareholders, labourers and so on, as being essentially of the same type from a legal and moral viewpoint. They showed no great respect for the later fashionable distinction between feudal and capitalist relationships. 11 Indeed part of their 9 ?Scias itaque quod per fidem fit hominum congregatio, civitatum inhabitatio, virorum com- munio, regis dominatio; per fidem castra tenentur, civitates servantur, reges dominan- tur. Si quidem tollas fidem, cuncti homines ad statum pristinum revertentur, vid. ad instar brutorum et simili- tudinem bestiarum. Cave tibi, rex fidelissime, infringere datam fidem et serva firmiter juramenta tua et federa, etsi sint gravia?, Secreta Secretorum, ed. R. Steele (Oxford, 1920), p. 57. 10 Several of these are contained in Tractatus Universi Iuris (Lyon, 1549) (hereafter TUI), Vols. 3 and 16, and in Tractatus Illustrium Iurisconsultorum (Venice, 1584) (hereafter TII), Vol. 6, parts 1 and 2, and Vol. 7. Extensive discussion of pacts had, however, been going on for a long time in the standard lecture-commentaries, from Azo onwards. On the medieval jurists see Handbuch der Quellen und Literatur der neueren europ ischen Privat- rechtsgeschichte, Vol. 1: Mittelalter (1100?1500), ed. H. Coing (Munich, 1973); F. Ca- lasso, Medio Evo del Diritto, Vol. 1: Le Fonti (Milan, 1954). 11 See for example the following: ?Si princeps in concessione feudi reciperet pretium, licet uteretur verbis ??indulgemur??, tamen cum sit venditio . . . per consequens erit contractus irrevocabilis, et non habebit naturam feudi; immo non privabitur ex causis ex quibus alias vasalli privari solent? (in other words, if money changes hands, investiture becomes an act of sale ? whatever ?concession theory? may be stated in the document): Jason de Maino (1435?1519), In

secundum Digesti veteris commentaria (Lyon, 1540), fol. 136r, n.12?14. 60 A. BLACK Copyright (c) Imprint Academic 2010 For personal use only -- not for reproduction concern seems to have arisen from the changing character of feudal relation- ships, the conversion of service into money (? bastard feudalism?), and also from attempts by princes to treat fiefs as revocable governmental offices rather than hereditary possessions with jurisdictional rights (?centralization?). We may start with their conceptions of the relationship between a ruler, especially but not exclusively the emperor (princeps), and his vassals, espe- cially cities. A developed argument on this seems to date back to the end of the thirteenth century. Cino da Pistoia (1270?1336/7) tells us that Guido da Suzaria (died c.1290), in a question on ?Whether, if the emperor enters into certain pacts with a certain city (civitate) or baron, both he and his successors are bound to observe these (teneatur ea observare)?, replied that he was so bound, on the ground that ?the laws of nature tell us that pacts should be kept and that faith should be kept even with enemies?. 12 This was the view adopted by Bartolus of Sassoferrato (1313/14?1357), generally regarded as the greatest civil-law jurist of the Middle Ages, and certainly one of the most influential: ?If the emperor makes a pact with a certain city . . . it may seem that he is not (held to observe it), because he is ??released from the laws??. The contrary is the truth. For pacts come from the law of nations . . . The laws of nations are immutable.? 13 Bartolus? eminent pupil Baldus of Perugia (c.1327?1400), whose works like Bartolus? were used by law students well into the sixteenth century, similarly affirmed that, if the emperor or king of France has invested a duke with a fief, neither he nor his successors can divest him at will but only ?for a fault or felony of which (the duke) is convicted?. Baldus went on to make a significant statement which reconciled this evolving juristic consensus with Roman-law texts on imperial sovereignty: ?The emperor?s fullness of power does not stand in the way of this, because, while it is true that God has subjected laws to him, he has not subjected contracts to him, and he is bound by these.? 14 In the fifteenth century this was the commonly accepted legal opinion, expounded by one academic jurist after another in their commentaries, which were the staple Maino was the last major pre-humanist jurist, unspeakably long-winded though himself a spicy character. 12 In Codicem . . . Commentaria (Frankfurt, 1578), fol. 26r/a, n.7 (on Codex 1.14.4); cf. Cambridge History of Medieval Political Thought (hereafter CHMPT), ed. J.H. Burns (Cambridge, 1988), pp. 461?2. 13 On Codex 1.14.4. See also Albericus de Rosate in TII, Vol. 11, part 2, fol. 26v/a. 14 In usus feudorum commentaria (Pavia, 1495), fol. 17v (Ad Feud. 1.7); see also In