Thursday, December 14, 2017

Property and Contracts

Luther and His Progeny: 500 Years of Protestantism and Its Consequences for Church, State, and Society, edited by John C. Rao.

In this post, I will examine the concepts of property and contracts as understood during the European Middle Ages; this is based on a chapter written by Brian M. McCall.  I will say up front that there are concepts here that are confusing to me. 

Regular readers know that I view this period in Europe as perhaps the period that most closely approaches the non-aggression principle applied for any extended period of time.  So…I (and maybe libertarians in general who would like to actually understand a model of reasonable success) should probably get a better understanding of the concepts of property and contracts as understood during the time.

I have written often of the law during this time: individual, as agreed between the parties secured with a sacred oath.  There is one concept that I could accept as true for the time (although, again, confusing to me), but could not understand the reasoning: one was not free to dispose of his property in any manner he chose.  Maybe the meaning can be found in just what was meant by the term “sacred.”

It strikes me that in a libertarian order, any contract agreed between two parties (that does not violate the NAP regarding a third, unwilling party) should be deemed a valid contract.  This chapter goes against this grain – although, perhaps by the time I am done with this post I might conclude that they just had a different definition of “aggression” than do I. 

If this is the case, I can accept this – the term “aggression” does not define itself; it is defined by local custom and tradition.

With this, let’s begin with a view of the custom and tradition of the time:

As Fanfani notes, “A man convinced that wealth is a means for the attainment of his individual, natural, ends which are not and cannot be divorced from his individual, supernatural ends…will choose such means of acquiring wealth as will not lead him away from his ultimate end or ends related to it.”

Call this man a noble, in the truest sense of the word.

Contract Law

The mere fact of parties reaching agreement was insufficient to give rise to an obligation… The object or purpose (causa) of the contract had to be reasonable and equitable.

This causes a pain in my side.  Yet, maybe, it should not.  Consider the debates amongst libertarians on two issues: intellectual property and fraud.  One could consider intellectual property to not be reasonable; one could consider fraud to not be equitable. 

The debates amongst libertarians on these topics continue to this day.  In other words, libertarians, to varying degrees, also see limits on valid contracts.  In any case, might the answer to questions such as these be found in the custom and tradition of the local population instead of in the most esoteric corners of political theory?

Catholic theologians and jurists developed two significant restraints on the freedom of contract that went beyond Roman law: the prohibition on enforcing usurious contracts and the requirement that contracts must be made at a just price.

To me, these two restraints are one and the same – a restraint regarding price.

They had developed a list of excuses for failing to honor a bargain that would relieve the promisor of liability.

These are restraints for which I can find no plausible connection to my understanding of contracts in a libertarian order.  Perhaps this is where the “sacred” part of the sacred oath comes in.  Maybe it takes such restraints for the people as a body to respect “contract”?  Maybe nobles had to accept such restraints if they wanted to maintain the respect and loyalty of the people?

The surrounding circumstances of the promise must be examined to determine if keeping the promise was morally and legally obligatory.  The obligation rested on the cause of the promise or the justness of the transaction.

Citing Professor Berman:

Our contract law started…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 obligations to the extent that such obligations are just.

And this, it seems summarizes the “sacred” part of the oath.


Pre-Reformation property law was centered on human relationships.  Property law prescribed the duties and corresponding rights of persons with respect to things….Land was not “owned” but “held” pursuant to relationships in which “rights of possession, rights of use, and rights of disposal were linked with the landholder’s duties to superiors, and privileges over subordinates, in the feudal chain.”

And as alien as this sounds to me, within it is the kernel that might address my earlier mention of not grasping the concept of an owner unable to dispose of property as he desires.

…limitations on the disposition and ownership of property began to be seen as infringements on autonomous individuals with respect to “their” property rather than being naturally inherent in the very nature of property.

Property, and not only humans, has a nature?  I will need many more kernels to fully understand this.

Although law recognized the rights of private property, these rights came with duties that required one to use private property not exclusively for his own personal interest but for the common good.

You must recognize that I am struggling with this from a legal perspective; but does this not square with the term “noble” when considering the noblest definition of the term?  It cannot be described as libertarian – not in any sense I can figure.  The closest I can come is in the best sense of the free market: to succeed in the free market, one must serve his customers – the common good.

In any case: are such nobles necessary if one is to maintain some semblance of a peaceful order with minimal coercion from a government or state?


I may be slightly further along in my understanding of these concepts of property and contracts from this period in history…maybe.  I accept that I might be stretching my views to fit my narrative regarding the time.  As I have offered, given my view of the Middle Ages I feel that I am the one that must stretch and not the tradition that allowed for 1000 years (plus or minus) of a reasonably decentralized political order.

Certainly some of the gap can be explained definitionally: there is not an objective definition for “aggression,” for example.  Maybe the answer is to be found in debates libertarians have even today, regarding intellectual property and fraud.  Maybe society needs true nobles in order to avoid the ravages of the state; maybe the laws of the time helped reinforce these true nobles.

But maybe most of the gap will be explained by the measuring stick I use: when comparing the laws regarding property and contracts of the Middle Ages to my conception of a fully free market, they fail; when I compare the old laws to today’s laws, the old laws allow for far more certainty in my property.

This, after all, is the objective of libertarian law.


  1. Mr. M,

    I hesitate to intrude but would thinking about those property rights in terms of “ecclesiastical” or even “traditional”, Covenants, Conditions and Restrictions (CCR’s) , help to compare them? They had “title” under certain pre established conditions, which I consider libertarian.


    1. Tahn

      This is a reasonable interpretation / explanation. It certainly fits with the idea that all on earth is God's, and we (the "owners") are merely stewards.

      God placed a CC&R on the property.

  2. Compare:

    As Fanfani notes, “A man convinced that wealth is a means for the attainment of his individual, natural, ends which are not and cannot be divorced from his individual, supernatural ends…will choose such means of acquiring wealth as will not lead him away from his ultimate end or ends related to it.”

    The Rule of Saint Benedict, written in the 6th century, includes the imperative to “keep death daily before one’s eyes.”

    This mindset is completely lost upon modern "business" done by "contracts". Wall Street has no regard for eternity. On the contrary, the next quarterly earnings announcement are all that matter. Executives get compensated handsomely based on meeting "guidance" about the next quarter.

    Crony capitalism is different from capitalism in exactly this respect. There is no regard for where one spends eternity. In the Middle Ages, there was an understanding about sins that cry out to heaven for vengeance, including depriving a laborer of his just wages. There was a better understanding of "users" which has been completely lost. I would include any profit derived where risk has been misallocated to others. Beggar thy neighbor by socializing losses (bank bail outs), etc. etc. Earn profits by selling war materials to the government. Or anything to the government. Or simply plundering the public coffer with corrupt dealing. I put it all under the penumbra of usury.

    These are but a few of the differences between how "contracts" are understood. Money itself is a contract. It is corrupted by the nation state. Putting "dross" in the currency was seen as a grave sin. The U.S. Constitution made counterfeiting of COINS subject to the death penalty. How far we have come.

    I am a Catholic and a lawyer, but I leaned a great deal about the biblical view of many economic concepts including oaths and covenants by reading books by Gary North, a Protestant, many years ago. Economics is an area where the Church has been woefully deficient in its teachings for the faithful. Sound, honest money. Usury. Just wages. Beggar thy neighbor. These concepts just are not that hard to grasp. Of course, the opposition understands the concept of "envy" even better. Another topic That Dr. North was writing about decades ago......

    1. IpseDixit

      You have described wonderfully well the difference in what is considered "nobility" today vs. the true nobility found in the Middle Ages. Thank you for this.

  3. Mr. M,
    While I cannot refute or deny the possibility that "God placed a CCR on the property", I was referring to the Church (Ecclesiastical definition, of or relating to the church or the clergy; churchly; clerical; not secular) or the "tradition" of the times placing them upon the property.


    1. Tahn, that is fair enough.

      God, the Church, or merely tradition. I can break bread with someone who accepts any one of these as the means and basis for law, as the ends are the same.

      We look to *something* other than / greater than / distinct from any "ruler" currently in place as the true sovereign.

      Go back far enough in tradition and culture, and one will find God (in the objective or subjective sense).

  4. "The earth is Yahweh's, and the fulness thereof; the world, and they that dwell therein." (Psalm 24:1)

    Any economic and/or property law (in fact, any alleged law whatsoever) that doesn't begin with this immutable principle, is errant and will eventually, if not immediately, prove to be destructive to society.

    Case in point: the Constitutional framers' rejection of Yahweh as America's sovereign and thus His moral law as supreme.

    The consequence: No one in America, thanks particularly to Amendment 5, owns any landed property whatsoever. Property taxes, eminent domain, and public lands have all contributed to the Constitutional Republic's theft of private property.

    For more, see online Chapter 14 "Amendment 5: Constitutional vs. Biblical Judicial Protection" of "Bible Law vs. the United States Constitution: The Christian Perspective" at

    Then find out how much you really know about the Constitution as compared to the Bible. Take our 10-question Constitution Survey in the right-hand sidebar and receive a complimentary copy of a book that examines the Constitution by the Bible.

  5. Libertarians talk about liberty and freedom, but the reason I visit the Bionic Mosquito is because this site dares to raise the question of whether freedom, in and of itself is enough. Living among libertines who observe the non-aggression principal might be better than our current society (i.e., libertines who exploit the coercive power of the State), but it won't lead to the long term, widespread peace and prosperity seen in the Middle Ages.

    Advent is the season to reflect on the four last things: death, judgment, heaven, and hell. And so it is a fitting time to mention “the responsibility incumbent upon man to make use of his FREEDOM in view of his EERNAL DESTINY”. This is from the Catholic Catechism (para 1036), and it is not the fault of the Reformation that the Church has done such a lousy job of teaching these precepts the past few decades.