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Dear Editors,

I do not doubt that there is much to concern the Christian jurisprude in the modern judicial administrations of U.S. private law. Nevertheless, I seriously doubt that John McClendon's Tarzanesque refrain of "contract, good; tort; bad" in his review of Peter Huber's books provides the key to the Christian alternative.

The interesting choice isn't between the market system and "utopian pretensions": we all reject the secular eschatology of the administrative state. After that's said, however, there still remains a profoundly important question: What type of market system should we choose? That the understanding of markets and contracts predominant during the 19th century is the biblical understanding, although widely assumed in conservative Christian circles, has yet to be demonstrated biblically.

Let's take a couple of policies McClendon commends to us and compare them with biblical laws. First, McClendon laments that strict liability has been imposed in some tort cases; he thinks it bad that "a showing of negligence" is no longer necessary. The defense in cases of negligence is that the defendant used "due care" in attempting to avoid the injury. If due care was used, then even if the defendant's actions caused the injury, the defendant isn't held liable.

Some biblical laws apparently impose strict liability. For example, the provision in Exodus 22:6, "If a fire breaks out and spreads to thorn bushes, so that stacked grain or the standing grain or the grain itself is consumed, he who started the fire shall surely make restitution." Note that even if the person who started the fire employed due care in controlling the fire, he is still held liable if an accident occurs.

Strict liability appears to be imposed in other cases (e.g., Ex. 12:35), although the remedy changes as a result of negligence or recklessness (cf., Ex. 21:35 with v. 36, see also vv. 33-34).

Secondly, McClendon asserts that today's system "destroyed a centuries-old liability system predicated upon the freedom of individuals to allocate risks by private contract." This thought is repeated later, and McClendon laments, as presumably unbiblical, that courts have struck down contract provisions because they were "unconscionable" and "contrary to public policy."

Although we can easily see that a judge imbued with the spirit of biblical wisdom and one surveying his own conscience for standards will come to different conclusions as to what is unconscionable and contrary to public policy, it seems pretty clear to me that a biblically-minded judge would refuse to enforce some contract provisions under these rubrics.

For example, McClendon's celebration fo the "freedom of individuals to allocate risks by private contract" is contrary to the liability imposed in the biblical trust, rental, and employment laws (Ex. 22:10-15). Note that McClendon's principle would permit the private law of the contract to control divine law: In the case of Exodus 22:12, the parties could contract that no restitution be made even in the case of theft. Also, contract could nullify Exodus 22:15 if the agreement allocated the risk to the neighbor or the employer.

Thirdly, McClendon would apparently enforce service contracts that a biblical judge would strike down as unconscionable. For example, you meet a starving man in the wilderness and, knowing a good deal when you see one, your condition for providing sustenance is that this man agree that his life is yours do do with whatever you will. That is, you have a despotic right over this man. Later, you strike the man and he loses a tooth, he leaves your service. Can you sue this man on the contract and force his return? Not if the judge applies scripture (Ex. 21:26-27): the law would void the contract as unconscionable.

Other cases exist, such as the imposition of usury (Ex. 22:25-27) and intentional assaults (Ex. 21:18-19). Complete contractual freedom in all of these cases would have the law of the contract entirely swallow up the provisions of biblical law.

This may smack of an apology for the present system, but it's not. I think the system needs to be changed, perhaps very significantly. But when we analyze policies and systems we ought to do it in an informed, balanced manner. McClendon seems long on polemical assertion but a little short on biblical proof and independent assessment of Huber's arguments.

This aside, however, what bothers me most about McClendon's review is that his celebration of contract seems more in accord with the spirit of the Enlightenment autonomy, and with its religious manifestation in the guise of baptistic volunteerism, than it breathes of the spirit of Reformed covenantalism.

All of this is not to say that contract would not have an important role in a biblical market economy. The point is that the word of God rules the market, not the word of contract.

Jim Rogers

Lincoln, Nebraska

McClendon Replies:

Mr. Rogers' main confusion lies in mistaking my explanation of Huber's thesis for a blanket endorsement of Huber's views. If I created Mr. Roger's confusion by not beginning each paragraph with the locution, "Mr. Huber says..." or "According to Huber...," I apologize. (I find repetitive use of such constructions inimical to good writing.) I suggest that he go back and reread the piece, mentally inserting one of these phrases at the start of all but the last two paragraphs. He will see that my review was not meant to be a critical acclamation of Huber's thesis but only a non-technical presentation of Huber's critique of modern liability laws, presented in its strongest form (something I believe Christians ethically owe those we interact with), from which Mr. Rogers and other Christians are free to find (and certainly will find!) areas of formal agreement and foundation disagreement.

Roger's criticisms regarding strict liability reveal a lack of careful reading and analysis. He claims I lament "that strict liability has been imposed in some tort cases." This is an unwarranted extension of what I said. In my only reference to strict liability, I briefly mentioned one specific situation: the recent extension of strict liability to all parties involved in the distribution chain of an injury- causing product. Mr. Rogers should note that I offered this as an example of how modern judges discard "venerable Common Law principles tracing their pedigree back to the Bible," not as a lamentation for the fact that strict liability is occasionally imposed. Applying this new expansion of strict liability to the Biblical model (Ex. 21:36) produces absurdities, for instance, we would have not merely held the owner of the ox that gored the other ox liable for the damage, but also the owner of the cow that bore the ox, as well as the drover who put the ox into the "stream of commerce" by delivering it to the owner!

The Common Law generally mirrors Scripture in imposing strict liability for damage caused by trespassing animals, known dangerous/wild animals (but note Ex. 21:35 is not strict liability, but a loss-spreading formula between two innocent parties) and, after Rylands v. Fletcher (1868), for abnormally dangerous conditions (Ex. 21:33-34) and activities (Ex. 22:6). What should concern Mr. Rogers, as it does me, are the modern courts extending strict liability far beyond Biblical warrant.

Mr. Rogers argues that a judge "imbued with the spirit of biblical wisdom" will strike down many contracts because they are "unconscionable" and/or "contrary to public policy." I hope this would never be the case! Most legal scholars concede such rubrics are legal fig leaves, mere "empty bottles" waiting to be filled with whatever value judgments a particular judge desires. Biblical law unquestionably sets boundaries to the freedom to contract. However, the judge loyal to Biblical law will void a contract because it trespasses those boundaries, not because he finds such a contract unconscionable or socially deleterious.

Finally, I am mystified why Mr. Rogers concluded that my review of Huber's narrowly focused discussion of the eclipse of contract and tort law is in fact a full-blown defense of absolute contractual freedom in every aspect of life. Mr. Rogers certainly raises some valid objections to permitting contract freedom to trump Biblical law in several areas of law. But his critique of contract as it applies to the law of bailments (Ex. 22:10-15), bond slavery (Ex. 21:20, et seqq.) and usury (Ex. 22:25-27) is simply not on point, as we lawyers say, with the topic, which was, after all, tort liability.


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