Contract
“Contract” is at least as old as the Old Testament and as new as the market transactions of the moment—local, national, and global. It encompasses the provinces of religion and commodities, state and civil society, public and private exchange, the rights of persons and the rights to property. Puritan theology speaks of covenants, Enlightenment liberalism of social contracts, political economy of commercial contracts, the law of liberty of contract. Informed by those traditions, US culture has long been infused by contract. Just after the Civil War, a primer handed out by Yankee liberators to former slaves testified to contract’s vast province: “You have all heard a great deal about contracts, have you not since you have been free?… Contracts are very numerous; numerous as the leaves on the trees almost; and, in fact, the world could not get on at all without them” (Fisk 1866, 47). The lesson of freedom was not simply that contract was essential but that it was virtually a fact of nature. Never was this more so than in the nineteenth century, when contract prevailed as a metaphor for social relations in free society.
Implicit in the vocabulary of contract is a set of fundamental terms denoting human subjectivity, agency, and social intercourse. As opposed to prescriptive duties or formally coercive bonds of personal dominion and dependence, a contract is, in principle, a purely voluntary obligation undertaken in the expectation of gaining a reciprocal benefit—an equivalent of some sort, a quid pro quo, or, in the language of the law, “consideration.” Thus contract implies both individual volition and mutual exchange, reconciling freedom and obligation, creating rights and duties, and imposing social order through myriad transactions among ostensibly free persons. Above all, contract implies conditions of self-ownership. In order to cede a portion of liberty by choosing to incur duties, contract makers must, in theory, be sovereigns of themselves—possessive individuals, entitled to their own persons, labor, and faculties. A lasting axiom of Enlightenment thought is that contract derives from and governs individual will and that free will is tethered to rights of proprietorship. Early in the nineteenth century, G. W. F. Hegel ([1821] 1979, 58) philosophized that under a contract, a person “ceases to be an owner and yet is and remains one. It is the mediation of the will to give up a property… and the will to take up another, i.e. another belonging to someone else.” Or as a US professor of political science explained half a century later, “I cannot make that the property of another by contract which is not mine already” (Woolsey 1878, 74). Equally enduring in this intellectual tradition is the notion that contract’s fundamental properties—self-ownership, consent, and exchange—belonged fundamentally to men. That notion, like the very meaning of “consent,” “exchange,” and “self-ownership,” has provoked a long-standing dispute over the cultural significance of contract.
Notably, a contract is not simply a language, a metaphor, a set of principles, or a worldview. A contract is also a palpable transaction. It is a social relation—an exchange relation—involving what the eighteenth-century British legal theorist Sir William Blackstone ([1765–69] 1979, 118) called the “rights of things” and the “rights of persons.” Abstract principles of entitlement and volition find concrete embodiment in contracts of state, of church, of sale, of debt, of labor, and of marriage. In the realm of US law, the nineteenth century has long been considered the age of contract—with contract figuring as the legal apparatus of classical political economy and laissez-faire liberalism. Yet the authority of contract reached well beyond the law, and contract law itself was heir to older religious and political traditions. In the Middle Ages, contracts of rulership reflected Christian doctrine as well as Roman codes, and ancient, informal customs of covenant shaped the advent of early contract law (Gordley 1991). In the modern era, the roots of contract extend back to understandings of the origins of the state, the Puritan church, and market society in the seventeenth and eighteenth centuries and, following the paths of the common law, became embedded in debates over the meaning of slavery and emancipation (Hopfyl and Thompson 1979).
Since the British settlement of North America, the tenets of self-ownership, consent, and exchange remained central to contract theory and practice, yet the meaning of those tenets was subtly altered to validate changing institutions and social relations. The doctrine of covenant, or contract, lay at the heart of dissenting Protestantism, reconciling divine supremacy and human agency, explaining the relationship between God and humanity as a bargain, and establishing consent as the basis for human obedience to biblical edicts. The Enlightenment theory of the social contract gave secular political formulation to this notion of voluntary submission to the rule of law, thereby legitimating the obedience of citizens to the authority of the state in return for protection of their lives and property. Here, contract entailed volition and reciprocity while also justifying a degree of subordination. But as a paradigm of commercial society, contract came to embody exchange between individuals who were formally equal as well as formally free. It defined the relations of the free market rather than the rules of sovereignty. For Adam Smith ([1776] 1937, 31) and his disciples, contract presupposed “rough equality” among persons involved in commodity exchange. And the antislavery claim of the nineteenth century was that contract represented the absolute antithesis of chattel bondage, with the abstract rights of freedom concretely lodged in the contracts of wage labor and marriage, which entitled ex-slaves to own and sell their labor and to marry and maintain a home.
Most famously, contract has been associated in US culture with the career of classical liberalism, an association that past and present critics have deemed the source of contract’s most infamous illusions and contradictions. The criticisms have become canonical and are virtually synonymous with those directed at other core liberal institutions and intellectual traditions: laissez-faire political economy, the negative state, the market calculus of supply and demand, commodity relations, possessive individualism, and the abstractions of rights theory. In contract, so the argument goes, the core liberal tenets of formal equality and freedom cloak actual differences of power, thereby obscuring the underlying social inequalities, dependencies, and informal compulsions that nullify the vaunted rights of individual contract freedom. Since the early nineteenth century, this argument has been advanced by wage workers seeking to form unions and fashion collective work contracts; by ex-slaves resisting free labor’s coercions; by churchmen, reformers, and intellectuals critical of the moral callousness and inequities of the free market; and by statesmen and jurists, such as Justice Oliver Wendell Holmes, who, in his landmark dissent in the 1905 Lochner v. New York case (198 U.S. 45 (1905)), insisted that the Fourteenth Amendment had been wrongly construed to enshrine liberty of contract as an absolute constitutional right. As one freedman vividly decried the falsity of the contract regime, “I would not sign anything. I said, ‘I might sign to be killed. I believe the white people is trying to fool us’” (Henry Adams, qtd. in Sterling 1976, 6).
Another strain of critique has brought to light the contradictions of contract in affirming individual rights while also validating sexual inequality on the basis of putatively immutable physical difference. Thus the “sexual contract” stands alongside the “social contract,” anointing men with property in women, who accordingly are dispossessed of rights to their own persons, labor, sexuality, and property (Pateman 1988). That was the outcry of generations of feminists against the marriage contract, which gave the husband dominion over his wife, binding her to serve and obey him in return for his protection and support. “If the contract be equal, whence come the terms ‘marital power,’ ‘marital rights,’ ‘obedience and restraint,’ ‘dominion and control?’” Elizabeth Cady Stanton protested in 1868. “According to man’s idea, as set forth in his creeds and codes, marriage is a condition of slavery” (Stanton 1868a, 1868b). Subject to the will of a master, the wife had no rights of contract, a fact that led Stanton and others to bitter comparisons between marriage and chattel slavery. Prostitution also figured as an analogy for marriage; reformers argued that both were contracts centered on the sale of sex as a commodity and in which women were not fully free or equal to men. The point was that only in the context of an ideal marriage, contracted freely between husband and wife who were utter equals, could sex be a legitimate token of exchange; otherwise, sex counted as a uniquely inalienable aspect of self (Stanley 1998).
Yet to highlight only the critical tradition is to lose sight of the emancipatory prospects of contract. Absent such insight, the cultural power of contract ideals becomes inexplicable, even mysterious. For the generation who witnessed the transition from slavery to freedom and argued over the meaning of that transformation, contract offered a way of making sense of the changes in their world and of distinguishing between the relations of freedom and slavery. Contract opened up ways of thinking about the perplexities of a culture that condemned the traffic in slaves while otherwise celebrating the boundlessness of the free market. It did not offer a common vantage point to differently situated persons but instead provided some common principles for expressing differing visions of the genuine meaning of self-ownership, consent, and reciprocal exchange. It was a language of aspiration as well as criticism.
Objections to existing contract relations often translated into demands for universalizing and authenticating the ideals of contract—for more perfectly realizing contract’s promise, as opposed to rejecting it outright. However much ex-slaves disavowed the equation of freedom and the wage contract, they tended to choose willingly to marry, and many expressly invoked their “rights under… contract” in challenging the control of ex-masters (Loyd [1865] 1990, 614–15). Notably, however much freedwomen joined with freedmen in affirming the collective dimensions of emancipation, they simultaneously asserted individual rights of property and person and protested the inequalities of marriage. At least some black women, both those born as slaves and those born free, explicitly strove to be self-owning. That was also the vision of generations of white feminists who proclaimed equal rights of contract as a central goal. And however much some critics condemned the entire wage system, many more, through methods ranging from unions and labor legislation to partnerships, cooperatives, and Christian brotherhood, sought to bring greater equality to the wage contract.
Precisely because contract held such emancipatory meaning, its ideals also could mask existing inequalities. That ideological paradox endures along with more palpable contract practices. Today, however, public debate dwells less on the legitimacy of contract than it did a century ago, when the age of contract waned with the advent of the welfare state and the new creeds of liberalism advanced by reformers in the Progressive Era. Then intellectuals and reformers disputed whether industrial capitalism subverted or sustained individual liberty of contract; indeed, many concluded that contract freedom had become illusory. And that conclusion still finds credence among some scholars today, who agree with the famous interpretation put forth by law professor Grant Gilmore in The Death of Contract (1974, 95–96): “The decline and fall of the general theory of contract and, in most quarters, of laissez-faire economics, may be taken as remote reflections of the transition from nineteenth-century individualism to the welfare state and beyond.” But again, the association of contract simply with the ideal world of Adam Smith is too narrow. “Contract” remains a keyword of both US culture and the study of that culture, signifying not only free-market capitalism, consensual government, and the rule of law but also the sovereignty of self that underlies the right of free individuals to choose what to do with their bodies and property. It is not hard to imagine emissaries of the global dispersion of US culture distributing primers just like those put in the hands of freed people after the Civil War.
2007