Orientation and Framework
This memorandum of law and fact about contracts is founded on a Bible-based theology. In modern American law, this is generally problematic because of the much-vaunted "separation of church and state". The "separation of church and state" is based on the 1st Amendment. But the 1st Amendment does not call for a separation of church and state. It mandates that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". This is explicitly a limitation on Congress, not on the courts, and not on anyone else. But because the principles expounded in the Declaration of Independence, Constitution, and Bill of Rights should be universally recognized and accepted in the American system of government, the courts should recognize, and have generally recognized, that this limitation on Congress also necessarily limits secular governments in general. Under such circumstances, it’s fitting to interpret these two preeminent clauses of the 1st Amendment as meaning this: Secular government shall not impose an established religion, or prohibit anyone’s free exercise of their religion. Because every educated adult at the time of the writing of those documents knew exactly what an established religion was, it’s necessary to acknowledge that the same meaning pertains in the 21st century. The founding documents disallow the establishment of any kind of church or religion. But even conforming to this 18th-century conception of the establishment of religion doesn’t exhaust the scope of these establishment and free-exercise clauses, or sufficiently clarify the jurisdictional boundaries between church and state.
The boundary between church and state can be clarified by consideration of the following fact: The avoidance of established religion and the simultaneous avoidance of violation of free exercise of religion, would not necessarily lead to a libertine state of social chaos, in which there are no moral boundaries on human behavior. That’s because what remains when religion is swept from the purview of secular government is not a complete vacuum in moral principles. There are principles embedded in the founding documents and common law that are prerequisites to the successful functioning of secular government. Even so, these principles have not been sufficiently defined. In this memorandum, this set of principles will be called the "secular religion". It is not a religion in the traditional sense of the word, but it is a set of principles that apply to all people within the secular government’s jurisdiction. This kind of religion is the rationally necessary exception to the rule forbidding the establishment of religion.
It’s obvious that the framers were attempting to establish some set of principles that would allow religious freedom, thwart secular government’s propensity to diminish such freedom, and still allow the successful functioning of secular government. Although the founding documents clearly aim at such a state of affairs, they are not clear enough, rigorous enough, or detailed enough, to define this secular religion. This is precisely why secular courts should allow admission of this memorandum of law and fact on contracts. Even though it’s founded on a Bible-based theology, it does not attempt to establish Christianity, Judaism, or any other traditionally recognized churches or religions. Following Porter’s Hermeneutical Prologue for Discovering Basic Jurisdictional Principles, this memorandum attempts to expound the secular religion at which the founders and framers aimed, as it pertains to contracts.
Although Porter’s hermeneutical prologue describes the framers’ secular religion as arising out of rigorous biblical exegesis, the typographical conventions used in this memorandum are not taken from there, but from Porter’s Theological Inventory of American Jurisprudence. These are the typographical conventions used in this memorandum:
Terms that have a special definition within this memo (whether of legal, philosophical, theological, or any other origin), along with theological terms that are common in the field of Reformed Theology, are generally underlined bold
Legal terms used with their ordinary legal meanings are generally in underlined italic
Case citations are generally in underlined italic
Important expressions are generally in bold italic
Non-English words are generally in plain italic
Titles of books and other such bibliographical material are generally bold
Words and phrases that have such special typography are generally defined in Helps files in Porter’s inventory. Any words and phrases that do not have such special typography should be understood to have vernacular definitions that may be refined by the context of this memorandum.
The hermeneutical prologue clearly shows that the Bible holds that modern human beings are created party to three Covenants. In other words, being party to at least three Covenants is built in to being human, and transcends human choice. The most obvious Covenant to which all humans are party is the covenant of works, also known as the Edenic Covenant. Like all Covenants and contracts, the covenant of works has terms, and the terms are laws to those party to the Covenant or contract. In the case of the covenant of works, the terms that pertain to human parties are natural laws. Although the hermeneutical prologue presents the natural law as existing in three parts, or as a tripod, the natural law can be understood most essentially as the moral law that applies to all human beings, which human beings are not able to adequately keep, evidenced by the fact that all humans sin and die. When humans violated the covenant of works in the garden of Eden, God divinely imposed another Covenant, the covenant of grace, also known as the Adamic Covenant. The Adamic Covenant allowed for the continued existence of the human race, even though in a fallen condition. Within a few generations of the fall, the human race became so reprehensible that God wiped them out with a flood, with the exception of eight people. After the flood, God made a Covenant with these eight people, and through them, with all subsequent humans. This memorandum calls this the Noachian Covenant. All subsequent Biblical Covenants, all subsequent human existence, and all subsequent human activities – including the making of contracts as part of everyday human life – all exist within the context established by these three global Covenants: the Edenic Covenant, the Adamic Covenant, and the Noachian Covenant. These three Covenants are each divinely imposed. Given that each subsequent Covenant is understood to be a set of amendments to the pre-existing Covenant, these Covenants apply to the entire human race, and that’s why the hermeneutical prologue calls them global. Although the first two Covenants certainly contain moral law, they contain no biblical prescription of human law. The Noachian Covenant is critical to this memorandum because it is the only global Covenant through which the Bible prescribes human law that is applicable to all human beings. It thereby exists at the core of the secular religion at which the framers were implicitly aiming.
After the Noachian Covenant, the Bible’s historical narrative tells of three other major Covenants, the Abrahamic, Mosaic, and Messianic Covenants. These latter three Covenants certainly have profound implications for humanity as a whole, but all people are not automatically party to these latter three Covenants. In contrast, all people are automatically party to the Noachian Covenant, just as they are to the Edenic Covenant and the Adamic Covenant. This arrangement has huge implications, because the Noachian Covenant has the only prescription of human law in Scripture that exists as a term of a Covenant that has global in personam jurisdiction, i.e., to which all people are automatically and inevitably party. Human law is merely law imposed by human against human. The term in the Noachian Covenant that prescribes human law is the Genesis 9:6 mandate against bloodshed. The analysis in the hermeneutical prologue finds that Genesis 9:6 bloodshed is metaphorical, and that this mandate should be understood to be against the destruction of the life of one or more other human beings, where such destruction can arise either ex delicto or ex contractu, but by no other means. Such destruction is defined as perpetration of death, damage, or injury to another’s primary or secondary property.
Genesis 9:6 has essentially three clauses: (i)a clause imposing a negative obligation to avoid perpetrating bloodshed (such destruction of another’s life); (ii)a clause imposing a positive obligation to execute justice against those who perpetrate bloodshed; and (iii)a clause that presents the motive for both the negative and positive obligations. The penalty for disobedience to the negative clause is essentially contained in the positive clause. But no penalty is given for disobedience to the positive clause. This means that the only enforceable human law that is explicitly prescribed in Genesis 9:6 arises out of the negative duty, but not out of the positive duty. So the positive duty remains obligatory as moral law, but not as a globally prescribed human law. So the Bible’s only global prescription of human law is the negative mandate against humans perpetrating death, damage, or injury against the persons or property of other humans. The positive mandate to prosecute those who perpetrate such destruction remains a moral obligation. The negative duty is immediately enforceable as human law, while the positive duty is not immediately enforceable as human law. So vigilantism is lawful under this global negative duty. But a refusal to execute justice against bloodshed / destruction, cannot be lawfully prosecuted unless there is some subsidiary contract, subsequent to the global Covenants, that provides for such prosecution. So the positive duty can become enforceable as human law if there is some governing contract, but the Noachian Covenant in itself is not that governing contract, although it retains preeminence over such subsequent contracts.
Even though the Bible expounds numerous other moral laws, here meaning natural laws that have a global in personam jurisdiction, this negative mandate against destruction ex delicto or ex contractu is the only human law that the Bible prescribes for the entire human race. So according to the hermeneutics used in the hermeneutical prologue, biblical authority is given for human enforcement against death, damage, or injury that arises ex delicto or ex contractu, regardless of whether the enforcement happens through a human government or not. But no biblical authority is given for the global enforcement against violations of moral law that do not involve perpetrations of delicts. This is because destruction of another’s life that happens ex contractu is governed by the jurisdiction established by the contract. All such destruction ex contractu is therefore local, as opposed to global. So the global negative duty is a global prohibition of perpetration of death, damage, or injury of other human beings, and that global subject matter jurisdiction encompasses both destruction ex delicto and destruction ex contractu, but because local contracts establish local jurisdictions, the global mandate against such destruction is mitigated in the case of local contracts. But there may also be extenuating circumstances for some presumed destruction that happens ex delicto.
There is no global authorization for enforcement against perceived violations of moral law that do not involve bloodshed. Bloodshed, destruction of another human being through death, damage, or injury of his/her primary or secondary property, is something that must be recognizable to all humans in general. This is because this is a global mandate within a global covenant. Presumed infractions against moral law that do not clearly destroy other people’s primary or secondary property should never be included within the ambit of Genesis 9:6 destruction. For example, excessive alcohol consumption, taking drugs, and consensual extra-marital sex may each be morally reprehensible to Christians and others, and they may even cause incidental or non-proximate distress, but because they do not explicitly and proximately destroy other people’s primary or secondary property, this lack of destruction precludes their inclusion within the ambit of bloodshed. Inclusion of such presumed moral deformities essentially converts moral law into human law without biblical authorization. This is true unless the parties are party to a Covenant that has local in personam jurisdiction, or have given some other form of contractual consent for such enforcement.
This terse description of the ramifications of Genesis 9:6 is also a terse description of the secular religion at which the framers were intuitively aiming. Because this framework posits that all human beings are inevitably party to certain Covenants, this framework also posits that such covenant participation is built into human nature. It follows that according to this framework, the social contract theory of government is a crucial ingredient in any political philosophy or jurisprudence that is consistent with this framework. It also follows that natural law, herein understood to be primarily the universal moral law, is also a necessary ingredient in such philosophy and jurisprudence. Since natural rights are a rationally necessary subset of natural law, it follows that natural rights are also a necessary ingredient in such framework, philosophy, and jurisprudence.
This Bible-based secular religion at which the framers were intuitively aiming is a long way from popular in the modern American legal system. In fact, it is besieged by numerous competing schools of jurisprudence on numerous fronts. It’s imperative for the courts in this country to focus on the vision of the framers, and to not be distracted by all this other static. Even though this nation has been built with many admitted flaws, it was built with this framework at its foundation. Absolutely crucial to this framework are the concepts of social contract, natural law, and natural rights. The prevailing schools in the modern legal profession – legal positivism, legal realism, etc. – show so little regard for social contract, natural law, and natural rights, that these schools are essentially laying the foundations for fiat law, fascism, collectivism, socialism, and even global totalitarianism. The hermeneutical prologue and the inventory combine with Porter’s theodicy and his Memorandum of Law & Fact Regarding Natural Personhood, to refute the fundamental gist of these prevailing schools of jurisprudence. But there are also two other schools that deserve at least a mention in passing. One is based in Christian theology. The other is an exponent of secular libertarianism.
The Christian theology that deserves special mention is theonomic reconstructionism (also known as Christian reconstructionism). It posits a political philosophy and jurisprudence that rejects both social contract theory and natural law. The rejection of both the social contract and the natural law is equivalent to rejection of the framework just sketched. Rejection of both of these is essentially laying the foundation for fiat law, fascism, collectivism, socialism, and even global totalitarianism. Since the hermeneutical prologue, the inventory, and the other works combine to answer the rejection of both social contract and natural law, it’s not necessary to say anything more here about this "Christian" theology. So like the prevailing secular legal schools of jurisprudence, theonomic reconstructionism can essentially be skipped in this memorandum, as having been adequately addressed elsewhere. But this school of secular libertarianism rejects the social contract while holding fervently to natural law and natural rights, and in the process it posits an alternative theory of contracts that demands special attention.
While Christian reconstructionism, legal positivism, legal realism, etc., tend to replace the historic foundation in social contract theory, natural law, and natural rights, with fiat law, etc., Murray Rothbard’s school of libertarianism tends to replace the historic framework by attempting to preserve natural law and natural rights while rejecting the social contract entirely. By rejecting the social contract, Rothbard’s system rejects the principle in the founding framework that holds that human beings are inherently and inevitably participants in certain Covenants. A social contract theory of government grows out of the above framework, and is inherently related to the human need to satisfy the global mandate against bloodshed, i.e., against destroying others’ primary and secondary property. Social contract theories developed by humanistic philosophers may deviate significantly from the framework discovered by the hermeneutical prologue, but they and this framework all have in common the belief that governments are based upon contracts. In reaction to the fact that secular theorists and traditional jurisprudence, including the framers’ inadequate implementation of the biblical framework, have so thoroughly missed the targeted framework, Rothbard’s anarcho-capitalism rejects belief in the social contract entirely. But Rothbard’s theory of contracts also offers something that is crucial to the proper implementation of the secular biblical framework.
Murray Rothbard (1926-1995) rejects the social contract based primarily on his theory of contracts, which he calls the "title-transfer" theory of contracts. Because this is an axe laid to the root of Bible-based jurisprudence, and because his title-transfer model of contracts is appropriate in the secular arena in some respects, even though it is not appropriate in the religious arena, it’s critical to give his model special attention. So it’s critical that this memorandum focus on specific portions of Rothbard’s book, The Ethics of Liberty, and on two articles written by Williamson Evers, "Toward a Reformulation of the Law of Contracts" and "Social Contract: A Critique". To whatever extent the title-transfer model is true, it will have a bearing on the existence of lawful government, and the existence of lawful taxing, taking, and spending.
Before proceeding with the examination of the title-transfer model, in order to make sure that this memorandum remains in context, it’s necessary to remember several other features of the biblical framework expounded in the hermeneutical prologue: This memorandum follows the convention that a contract that people form specifically for the purpose of prosecuting perpetrators of delicts is called a jural compact. A contract that people form specifically for the purpose of adjudicating contract disputes, is called an ecclesiastical compact. A contract that incorporates and encompasses both the jural compact and the ecclesiastical compact, and also encompasses the customs, usages, rules, and all the other contracts by which people live from day-to-day, is called a social compact. A contract that is intended to encompass a plurality of religions is called a secular social compact. A contract that is intended to encompass only a single religion is called a religious social compact. — Each of these various kinds of compacts has a very specific in personam jurisdiction and a very specific subject matter jurisdiction. If such a compact is fully functional, then it will also have a very specific geographical jurisdiction. — In the process of examining the title-transfer model of contracts, it’s safe to assume that whatever is valid about it will fit rationally into the Bible-based framework expounded in the hermeneutical prologue.
In the hermeneutical prologue, it’s assumed that contracts should always be enforced as written, as long as they conform to the jurisdictional boundaries just sketched, and unless there is something unconscionable about them. What is always unconscionable in every geographical jurisdiction is the intentional or unintentional perpetration of a delict. This is because the mandate against delicts is global, and no one can escape it by entering into a contract. So under a secular social compact, if a contract invokes the perpetration of a delict, the contract is proportionally unenforceable and void. So all contracts that invoke delicts are unconscionable. But on the other hand, some contracts are unconscionable even if they do not invoke delicts. Under a religious social compact, a contract might be unconscionable, void, and unenforceable even if it does not invoke the perpetration of a delict. This can happen if the contract violates the religion’s moral code. Under the jurisdiction of a religious social compact that prohibits fornication, a contract to fornicate would be unconscionable, void ab initio, and unenforceable, even though fornication is not a delict under strict construction of the bloodshed mandate. So the issue of what is conscionable and what is unconscionable within a given jurisdiction is crucial to determining whether a contract can be enforced within that jurisdiction.
The context established in the Ethics of Liberty makes it clear that people who advocate the title-transfer theory of contracts do not take jurisdiction as being absolutely crucial to the enforcement of positive law. Such neglect of jurisdiction is a huge mistake. Nevertheless, in essence, the title-transfer model tries to draw a clear distinction between what is an enforceable contract and what is not, and it does so by differentiating what is conscionable and what is not. Its authors deserve some thanks for that. While insuring that the hermeneutical prologue’s jurisdictional framework is maintained, the essential issue that needs to be determined in this memorandum is this: Do Rothbard and company draw the line between conscionability and unconscionability in the right place? If a court does not correctly draw the line between a conscionable contract and an unconscionable contract, then the court will inevitably err on one of two sides: (i)If the court enforces what is in fact an unconscionable contract because it construes the contract to not be unconscionable, then the court is lending its power to inflict undeserved harm on the contract’s vulnerable party. (ii)If the court refuses to enforce a contract because the court believes the contract is unconscionable, when in fact it is not unconscionable, then the court fails to do its job, and fails to render equity where equity is demanded and needed. — In the final analysis, the title-transfer model fails not because it fails in regard to conscionability, but because it fails in regard to jurisdiction, and that failure leads it to reject the social contract. Even so, the title-transfer model is a worthy effort at protecting the individual’s natural rights against government that has in many respects gone almost completely rogue. It thereby has legitimacy in the secular arena that it lacks within religious jurisdictions.
Rothbard begins Chapter 19 of The Ethics of Liberty by saying, "The right of property implies the right to make contracts about that property: to give it away or to exchange titles of ownership for the property of another person." This does not conflict in any way with the secular framework expounded in the hermeneutical prologue. He goes on to speak of "libertarians" who ostensibly believe in this initial statement, but who fail to properly construe it. Then he says, "[T]he only enforceable contracts (i.e., those backed by the sanction of legal coercion) should be those where the failure of one party to abide by the contract implies the theft of property from the other party." When examined thoroughly, it’s possible to accept this statement as true within the secular arena, but not necessarily true within the religious arena. From the hermeneutical prologue’s perspective, it’s possible to agree with this latter claim only by using definitions of "property" and "theft" that Rothbard would probably not accept. Rothbard is certainly attempting to solve a legitimate problem in making this claim. But his solution is deficient. In fact, the logic associated with this latter premise leads Rothbard to reject the social contract entirely.
Based on the fact that the title-transfer model uses definitions of "property" and "theft" that are appropriate within the scope of jural societies and secular social compacts, this memorandum will start by giving the Rothbardian libertarians the benefit of the doubt, and assuming that their model may be perfectly valid within this jural and secular context. The remainder of this memorandum is dedicated to (i)describing the problem that Rothbard and his colleagues were trying to solve; (ii)describing Rothbard and company’s solution; and (iii)presenting the solution expounded in the hermeneutical prologue.