The Sensing State, the Ghostly Will: Enforcing Agreements in Ancient Rome and Today

Alex McPhail

15 October 2021

Alex is a third-year law student at McGill University. He has an MA in Iranian Studies from the School of Oriental and African Studies at the University of London, and a BASc in Philosophy from McMaster University.

Introduction

To liberal and neoliberal scholars, the contract is a universal form, both in a strictly legal sense, and as a model for understanding social relations. Legally, the model of a contract can be applied with only minor changes to a dizzying array of human relations. More broadly, scholars from Locke to Rawls have used “the social contract” as a means to understand social life. Though their models are different, both see human sociality emerging from the “state of nature” through freely bargained-for agreements between equals. This paper asks about the degree to which contracts can be understood to be universal, by reference to contemporary contract theory’s understanding of those who contract, and comparing this conception to earlier conceptions in European intellectual history. This difference is in many ways a sensuous one, in its vision of people and of the state.

Even beyond a specifically legal articulation, the idea that agreements must be honoured has been described as more or less universal. It accords with a commonsense notion of justice or fairness, regardless of what specific philosophical notions are brought up in support of it, and relates to other personal virtues: honour, honesty, loyalty, integrity. While it can be put into conflict with other ethical obligations, and might not always be upheld, the basic idea has been touted as fundamental and shared across societies.

On this basis, some legal academics have attempted to make this the basis of contract law, and to subsequently place contract law at the centre of legal thinking. In this model, there is a single notion of contract, as described generally in Civil Code articles, that applies to what otherwise would appear to be disparate phenomena: corporate mergers, marriages, employment contracts, collective agreements, sales, or warranties.^[1] Despite dealing with a wide variety of phenomena, each, to this mode of thought, is united in that they represent something analogous to an agreement, between two persons (legal or natural), freely made and therefore enforceable. Leaving aside legal relations between people who might not actually have a contract, (car accidents as one of the preferred academic examples), and the slightly more complicated contracts that span more than one country, the potential reach of this notion of contract is enormous. This is especially true when, as in modern civil codes, neither the agreement nor its acceptance needs a particular form, whether written, verbal, visual, physical, virtual, etc., and the subject of the agreement could be anything not proscribed by law.

Contracts, in this mode of thinking, are thus universal in two ways. Firstly, they represent the formalization of a universal instinct or feeling of justice. In this sense, the law is only reflecting existing sentiments, and, in enforcing them, is honouring legitimate, widespread desires. Secondly, they are universal in that their basic form – free agreements between juridically equal persons – represent not just what might be referred to in common parlance as a “contract” but a far greater scope of human activity. In its basic outline, a dog-sitting agreement with one’s neighbour is analogous to construction contract between a government and a construction company, or between a fast-food worker and their employer, or the simple act of purchase at a store. For social contract theorists, like Locke and Rawls, social life itself can be understood as basically “contractual” – arising out of bargained-for agreements between equals. The idea that contracts are a universal form suggests that each of these notions shares a basic, skeletal structure, despite there being different meat on the bones in practice.

If these two notions of the universality of contract are teased apart in this way, their relations become clearer. The second view of the universality of contract is potential, rather than factual: surely the law could find a common structure in these agreements, but it could instead find difference and uniqueness. Indeed, a commonsense understanding might vitiate against finding this common structure. But the first claim about the universality of contract turns this could into a should: contracts should be a nigh-universal legal form because they accord with a basic sense of justice or fairness.

The Enforcer

Complicating this account still further is the third figure in this discussion, who has been alluded to, but not directly invoked. Agreements and contracts are between two people appear to be similar to each other, and certainly every contract is a kind of agreement. But not every agreement is a contract. In Quebec law, for example, any agreement for surrogacy might have all the elements of a contract, but the CCQ explicitly prohibits just such an agreement, and treats it as unenforceable, occasionally with strange consequences.^[2] Legal systems generally restrict the ability of minors to contract, and have historically restricted the ability of women, especially married women, to create legally enforceable agreements. A contract, then, is between two people, but relies on something external to it for legitimation and enforcement. Contracts might be concluded in hushed tones, in locked rooms, in the remotest corners of the earth. But in order to actually be enforced, they have to be perceptible to the entity that is to enforce them and their formation must be proper. The apparent universality of contracts – the flexibility of the form and the universal moral values they can be understood as inculcating – is in practice constrained by the requirements related to the this third party.

In a strictly moral sense then, we might maintain that agreements should still be respected, generally speaking. But law is not morality. Which agreements are respected depends on how exactly they are to be enforced, and by whom. Universality thus gives way to particularity: not just moral particularity, but one that implicates the enforcer.

Who, then, is this enforcer, and what are they enforcing? In contemporary legal thought, the answer to the first question is clear enough that it hardly even bears stating, and terms like “rule of law” generally suffice. In the event that an agreement is not honoured, the aggrieved party generally applies to the court system. If their claim is found to be valid, it is the agents of the state who are ultimately tasked with remedying the situation. In a contemporary legal system, the enforcer of a contract is ultimately the state, which can evaluate claims, coerce parties, and maintains a monopoly on the legitimate use of force.

An answer to the second question, however, requires a much deeper philosophical detour. Modern contract theory understands contracts as a meeting of minds – consensus ad idem. While not necessarily stated directly, the modern lack of formal requirements for contracts, the breadth of their form, the possible defects (around coercion, confusion, and so on) and the possible uses to which contracts can be put all suggest that contracts are the product of will.^[3] Just as an expression of will need not take any particular form, and can even be implicit,^[4] so too with contracts in a modern Civil Code like Quebec’s.

Thus, while related to broadly held ethical precepts, modern contract theory is quite specific in its social context and understanding of those who contract. In terms of the first notion, contracts without a state, or without the state’s approval, are only agreements. In terms of the second, contracts offer a view of humanity that is hardly a universally-held one. While advocates for contract theory invoke ethical values and the importance of interpersonal relationships, the people who contract, to the theory, are pure will.

Will

Will, of course, might manifest itself physically, but is not a physical thing. We might never act on deeply-held desires, or do so only privately, away from prying eyes. Nor is will directly perceptible. On stage, characters can soliloquise and bare their innermost thoughts, but outside the theatre, will is only visible through its manifestations. Without telepathic judges, outward manifestations of will are not valuable in themselves, but derive their value by referring back to will: essentially, as evidence. A contract might be signed and notarized even as one party expresses doubts about it, but in a courtroom the signed and notarized contract will be more valuable than the memory of a passer-by. Unable to ever grasp it directly, courts search for will’s reflections in our material world. A curt nod of assent, an overdramatic flourish of a pen, a discordant cry: each relates obliquely back to the will that is understood to have inspired it. The distance between will and its expressions inevitably produces ambiguities. When someone spoke these unambiguous words, were they joking? When they signalled agreement, was it to the entirety of the offer or only the last section? Might some of an offer have been misheard?

Equally important is what will is not. In the context of an agreement, what is relevant is will in its social context: a meeting of minds, a consensus. Will itself, however, is not collective, and is not understood by reference to a broader social setting. For Locke, as well as for Rawls, will is first and foremost an expression of self-interest, even if justice, generosity, and other values might be in one’s self-interest. Contract theory grasps will at its most sociable, but will itself is always solitary.^[5]

Thus, a vision of people and of the state comes into focus. Modern contract law grasps the former as essentially nonphysical will – thus the easy translation between “moral persons” in the form of corporations and physical persons in the form of human beings. Despite the nonphysical nature of will, it is necessarily mediated through the physical world. But these sensuous expressions of will are not valuable in themselves, only insofar as they relate to the will that inspired them. The same words, spoken by the same person, in the same tone could be serious or sarcastic, and, where there might be ambiguity, modern contract theory must look beyond the sensory expression and interrogate the will that created it. In terms of the state, modern contract theory implies a perceptive state: a state that sees, listens, feels, smells, and tastes. Tasked with analyzing will, the state, through its representatives, can listen to recordings, can look over physical documents, can evaluate all manner of other physical evidence. Indeed, it must.

However, this vision of will, even in the context of legal agreements, is hardly as universal as its proponents might argue. This is particularly visible in the structure of Roman contract law. Nowhere in a Praetor’s edicts, or in the codes compiled later in Roman imperial history was a general view of contract even visible. Firstly, what to a modern Civil Code was understood as “contractual”, for Roman Law, was a subcategory of obligations more broadly.^[6] Secondly, Roman law had no overarching category of “contracts”, dividing legally binding agreements into several categories with different forms and purposes. Agreements created and recorded through parallel bookkeeping entries, for example (litteris), differed from agreements created by an informal agreement and concluded by the delivery of property (re). Both of these differed from stipulations, which were only binding when spoken in a precise, formalistic structure – a question and answer, that share a verb, concerning a specific, permissible object, expressed in one of only a few possible forms.^[7] Finally, contracts of sale, lease, partnership, and mandate could be created by informal agreement alone.^[8]

Rather than starting from an understanding of embodied or disembodied will, each of these theories starts instead from a far more practical, socially embedded understanding that relates to the fact that it is the state that ultimately must enforce these agreements. For simple, everyday transactions that can nevertheless be understood as legally binding and enforceable, Roman law was willing to honour comparatively informal agreements. In this respect, the act of selling in Ancient Rome looked much as it looks today: quick and informal, with the actions in their social context constituting the agreement itself. Sellers do not have to recite any particular verbal formula or perform any particular action. Whether by reference to will, custom, or bona fides, Roman iudices were able to find binding agreements even in the absence of formalities.

Stipulationes, however, served far broader purposes and had a far more exacting structure. Unlike modern contract theory, which locates the source of the obligation produced by a contract in the wills of the contracting parties, “the primary source of the compulsion is not, in the case of a [Roman] contract, the will of the parties, but rather the force that Roman law attaches to their specific agreement, its form and its substance”.^[9] This led to results that, to a modern understanding focused purely on will, seem perverse. For example, while Ulpian allowed for a small break between what we would term the offer and the acceptance of a contract, and Justinian permitted a brief break for bathroom emergencies, Roman law generally required offer and acceptance to be continuous, refusing to honour stipulationes in which one of the parties had started to do something else between the offer and the acceptance.^[10] It also generally required the parties to be physically in one another’s presence,^[11] with written contracts, which developed later, serving as evidence of an oral contract rather than a substitution for it.^[12]

In short, stipulationes understood human beings not as pure will, but as social beings necessarily in a relationship with a state with limited powers. Unlike a will theory of contract, which relies on outward manifestations as evidence of inner intent, Roman law focused far more intently on the physical, sensuous contract.^[13] A stipulatio required not just physical presence, but the work of speaking and hearing, and absence was thus understood not only as a question of physical presence, but a broader category of contractual defect, leading, logically, to the conclusion that a deaf-mute cannot contract a stipulation.^[14]

Unlike modern contract theory, Roman law refused in most cases to look “beyond” the physical manifestations of will to the will itself. Even where informal agreements most resembled a modern conception of contract, this seems to be less out of a philosophical commitment to will than the exigencies of a market. To the variety of Roman law that would be understood today as “contractual”, then, human beings are not to be grasped in their nonphysical essence. Whatever Roman thought might have understood about the non-physical aspects of humanity, its law saw humans as essentially physical beings able to be grasped meaningfully in their physicality. At least in the context of stipulationes, one was a legal being to the extent that one was a physical, sensing one. If one could not speak or hear, one lacked legal capacity.

Thus the Roman state, through its iudices and praetores, is sensuous and perceptive, just as the modern state is necessarily sensuous and perceptive. But its perception, as compared to the modern state, is less supple and less intrusive. In its search for the invisible will underneath a statement, there are few limits on the conversations that the modern state might want to listen to, documents it might want to see, possible expressions of agreement it might want to smell, or taste, or feel. In its search for a will that can never be definitively found, the modern state is as curious as it is voracious. The Roman state – smaller, less powerful, and less interested in will – is mostly indifferent to this vast, sensuous world, and the mysterious universe of will underlying it. Like a spider in the corner of a web, it is content to ignore to the buzzing, thrumming world… until the buzzing and thrumming is felt in its feet. Motivated only by the right words, the right forms, or the right practices, its inquiries are simpler and more limited. Were these words actually spoken? Was the described good actually delivered?^[15]

Notes

All web sources accessed October 25, 2021.

1. Described in the Quebec Civil Code at the highest level of generality at 1378: “A contract is an agreement of wills by which one or several persons obligate themselves to one or several other persons to perform a prestation.Contracts may be divided into contracts of adhesion and contracts by mutual agreement, synallagmatic and unilateral contracts, onerous and gratuitous contracts, commutative and aleatory contracts, and contracts of instantaneous performance or of successive performance; they may also be consumer contracts.” ↑
2. Such as a Quebecois child without a legal mother. See https://www.cbc.ca/news/canada/montreal/born-to-surrogate-child-has-no-legal-mother-quebec-judge-rules-1.822683 ↑
3. To the Quebec Civil Code, though, this is explicit: contracts are an “agreement of wills”. ↑
4. The Quebec Civil Code explicitly contemplates “tacit” consent at article 1386. ↑
5. It is also singular, though contract theory (and this paper) focus less on this aspect of will. In contrast to the core Buddhist doctrine of anattā – no-self – and the Hindu atman to which it responds, a theory of will generally presupposes the existence of a singular, personal will. ↑
6. Bruce W Frier, A Casebook on the Roman Law of Contracts (Oxford: Oxford University Press, 2021) at 14. This overlap – the understanding that the remedy for a contractual breach lies outside of contractual law proper – is analogous to the development of the right of assumpsit in Common law. In the modern CCQ, both contractual and extracontractual duties are described with the same terminology and smaller parts of a larger book – on obligations – though the legal mechanisms for the two are different. ↑
7. Briefly, either an absolute (or abstract) form (I promise to do X), a form that expresses a reason (I promise to do X because of Y), or a conditional form (If a specific person does Z, I will do X). See Frier at 67. ↑
8. Frier at 5. ↑
9. Frier at 14. ↑
10. Frier at 44. ↑
11. Though the law did permit slaves to act as representatives, they too had to be physically present. ↑
12. See Frier at 51. ↑
13. Roman jurists were still interested in the will of those who contracted – for example, to resolve ambiguity. However, even here, Roman jurists made far more extensive use of an expansive notion of bona fides than contemporary legal systems. ↑
14. Explicitly addressed in Ulpian, see Christian Laes, “Silent Witnesses: Deaf-Mutes in Graeco-Roman Antiquity” (2011) 104:4 The Classical World 451 at 466-67 and Frier 2021 at 44. ↑
15. I acknowledge that this understates the breadth of legal thinking in Roman legal thought around defects of contract. For example, much ink was spilled on varieties of impossibility – impossibility of conditions, the impossibility of actions, and so on – as well as on contractual ambiguity – whether a term or condition is unambiguous and if so, how – and mistake. Nevertheless, even ambiguities tend to be resolved firstly with reference to the words of the contract, secondly with reference to local usage, and thirdly, as restrictively as possible – not with reference to will (except insofar as “local usage” might be a possible proxy for will). See Frier at 57. Moreover, praetores were deeply interested in the question of whether the right words were spoken, even where there might not be a dispute about the will of the parties – for example, if one nodded assent rather than spoke it, one was not legally bound. See Frier at 43. ↑