Contracts of Genesis

Contracts of Genesis

Description

Among the man fascinating texts in the Hebrew Bible are a number of stories that describe the making, performance, and breach of contracts and contract-like arrangements. These include Abraham’s purchase from Ephron the Hittite of a burial ground for his wife Sarah, Esau’s sale of his birthright to Jacob for a mess of pottage, the performance by Abraham’s servant of a contract of agency to procure a wife for Isaac, Jacob’s employment agreement with his father-in-law Laban, Jacob’s sons’ negotiation and breach of a peace treaty with the Shechemites, Jacob’s fraudulent procurement of Isaac’s blessing, and Jephthah’s vow to perform a sacrifice in exchange for a military victory. Most of these stories are found in the book of Genesis. All or nearly all date from the earliest strata of texts in the Hebrew Bible, the “J” source. These stories are among the fundamental documents of Western culture. They have been studied, analyzed, and interpreted for three thousand years. To the best of my knowledge, however, they have never been considered from the standpoint of legal-economic theory. This article attempts such an analysis. Drawing on archaeological, anthropological, and textual scholarship, I situate these stories within the historical context in which they appear to have developed. This was the period recounted in the book of Judges: a time when “there was no king in Israel,” no geographically extended authority claiming a monopoly in the use of coercive force, no standing army, no capital city, no formal courts, and no archive or authoritative system of written records; in short, there existed no one of the institutions that even in ancient times inevitably attended the establishment and organization of a nation-state. Social conditions such as these presented enormous difficulties for the organization of society in any but the simplest form. The problems can be understood and analyzed from the standpoint of legal-economic theory. Among the fundamental tenets of law and economics is the proposition that human welfare is greatly enhanced if property rights are clearly defined and effectively and readily transferable. These is no reason to suppose that this proposition held any less true in ancient times than today. Social conditions in ancient times, especially those prevailing in the hill country of Canaan at the time of the Judges, however, presented special problems when compared to current conditions. The definition and transfer of rights is difficult enough today, even with all the benefits of an established central authority and a technologically advanced society. These functions were far more difficult in the stateless and technologically impoverished (by our standards) society of the period of the Judges. In the absence of a state wielding a monopoly of force, the enforcement of executory contracts was inevitably problematic. Once one party had performed, the other party might well be tempted to take the benefit of the performance and then renege on his own promises. Further, in the absence of an authoritative system of written records, the contractual obligations themselves were subject to great uncertainty. Most contracts were oral and, accordingly, subject to the vagaries of memory and the possibility of fraud. Disputes over contractual meaning were likely even among parties acting in good faith. And good faith was by no means assured, especially when the contracting parties were not tied by bonds of clan or cult. The possibility of disputes would have deterred the contractual process at the outset since the parties could not be sure of obtaining the benefit of their bargains. Even more problematic, disputes over contract terms were likely to lead to violence and even blood feuds in the absence of an established state claiming a monopoly of coercive force. In my view, many of the stories in the J source served the important social function of embodying and culturally transmitting rules of customary law that responded to the problems of contract and quasi-contract formation and enforcement in a society without an established state. Indeed, the social importance of this function largely explains why these particular stories survived and passed through the oral tradition to be collected by the authors of the J source and incorporated into the great national epic of the newly formed state of Israel. These stories, of course, do not resemble “law” of the type with which we are familiar today. Unlike other, explicitly legal texts in the Hebrew Bible, these texts do not expressly set forth binding prohibitions or injunctions. Nor do they record the decisions of a tribunal with the authority to adjudicate disputes. They instead appear to be tales about important events in the livers of the Patriarch and other heroes of the Israelite people. There is a good explanation, however, for why principles of customary law would be embodied in narratives of this type. In a society without an authoritative system of written record, there was an enormous premium of ease of memorization. Vibrant, lively stories such as the tales of the Patriarchs were easy to remember and could be carried in the culture without the intercession of any cohort of specialized functionaries such as scribes or, in later times, lawyers. Rules of customary law could be easily passed along in the culture by being tagged to stories such as these. The stories, moreover, tended to be self-authenticating because the protagonists were charismatically endowed tribal ancestors whose actions conveyed patriarchal authority. As we will see, the rules of customary law that can be drawn from these stories are, in general, not ones in use today. Indeed, many of these rules appear harsh and even unjust. The Jacob-Esau story, for example, seems to carry the message that a contract for sale is valid and enforceable even if made under conditions of extreme inequality of bargaining power. The moral ambiguities of these and other stories in the J source pose a challenge to theological interpretation: why did these divinely inspired Patriarch occasionally behave so badly? Seen as embodiments of customary law, however, and placed in the social setting in which they arose, these texts can be explained in a relatively straightforward fashion. The dangers of disputes over meaning in a society without a state or an authoritative system of written records created an urgent need for bright-line rules in the interpretation of contractual and quasi-contractual behavior. Many of the stories I discuss in this article—including the Jacob-Esau tradition—convey exactly such bright-line rules. Occasional unfairness in application was a cost that the society had to bear in order to avoid the even greater costs of uncertainty in interpretation. Moreover, in light of the social conditions of the times, it is rather easy to explain why the stories that were preserved in the oral tradition and incorporated into the J source often seem so morally problematic. The premium on memorization imposed by the absence of an authoritative system of written records implies that the stories that survived in the tradition would convey information as efficiently as possible. Far more information is conveyed by the hard case than by the easy case since the easy case leaves the hard cases open whereas the hard case disposes of the easy ones a fortiori. Many of the stories in the J source about contracts and quasi contracts are hard cases – indeed, sometimes as hard a case as could be imagined, as in the case of the Jacob-Esau tradition, where a birthright is exchanged for some lentil stew, or the vow of Jephthah in which the hero is required to sacrifice his own child. As hard cases, they conveyed information in the culture with impressive efficiency. The stories that do not contain hard cases can be explained on other ground. The story of Abraham’s purchase of a tomb at Machpelah, for example, repeatedly stresses the fairness and goodwill exercised by all parties to the contract; as discussed below, this story constitutes the oral recordation of a deed to real property; the easiness of the case protects title to the property of warding off potential claims of fraud by the seller or his descendants. Many, perhaps most, of the interpretation put forward in this article are, to the best of my knowledge, new to biblical scholarship. This apparent originality necessarily gives me pause, for these texts are among the core documents of Western culture. If these interpretations are valid, would they not have been advanced before by some of the great thinkers who have devoted their livers to reading and pondering these texts? I have delayed publishing this article for several years out of concern that my ideas may be wrongheaded or howlingly misguided and have sought the advice of eminent biblical scholars. Yet, as I have continued to study and analyze these and other biblical texts, I remain convinced that the interpretations are plausible and even persuasive. The originality of many of the interpretations stems, I think, from the fact that I am applying a relatively new discipline of legal-economic analysis to texts that have usually been interpreted from other perspectives. I wish to stress one other point at the outset. In viewing these biblical texts from this secular perspective, I in no way intend to denigrate the great spiritual meaning and the astounding literary beauty that they also contain. My own initial interest in these texts was from a spiritual rather than a secular and analytic standpoint. I believe, however, that texts as profound as these can contain many meanings, spiritual as well as secular, and that the secular meaning do not detract from their spiritual message. In this article, I attempt to offer one possible secular meaning as a addition to the many-textured meaning already recognized within these magnificent stories. This article is structured as follows. Section I describes some of the findings of biblical textual criticism that dates most of the texts discussed in this article from the earliest period of the Hebrew Bible’s compilation. This section then outlines some of what is known about the social conditions in which theses texts appear to have developed, derived both from the Bible itself and from archaeological investigation. Section II proceeds to the analysis of particular texts. Section III summarized the findin

Source Publication

Economics of Ancient Law

Source Editors/Authors

Geoffrey P. Miller

Publication Date

2010

Contracts of Genesis

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