Contract law and Christian conscience

Brigham Young University Law Review, 2003 by Ricks, Val D

What Does God Expect of Contract Law?

This essay proposes to answer that question. The answer has two parts, both of which are essential. First, the canon of scripture accepted by the Church of Jesus Christ of Latter-day Saints indicates that the only proper role of government is to protect and promote the freedom to obey the commandments of God. True freedom to obey God's commands includes, secondarily but necessarily, freedom to disobey. I refer to freedom that is centered on obedience to God as "salvific freedom." Part III of this paper shows that protection and promotion of salvific freedom is government's theologically proper role and that some kind of contract law belongs to it.

But a theologically proper role for, or doctrine of, the state is only one part of the answer. The doctrine of the state is general and by itself will not resolve specific disputes. Under what circumstances is salvific freedom most fostered in the resolution of an individual case? A focus on the goal of salvific freedom will not itself answer this question without an understanding also of at least the requirements of salvation, the practicalities of meeting them, the diverse ways in which humans might serve God, and a sense of how one party's freedom is best balanced against another's in order to promote the ultimate goal. Sometimes harm to one party's freedom to do right must be balanced against the protection of another party's freedom not to observe God's commandments. All of these other elements are matters of faith, which Paul describes as "the substance of things hoped for, the evidence of things not seen."1 "[N]ot seen," "hoped for"-he means unproved, at least. And some of these unproved elements will differ from case to case. In order for the law to serve salvific freedom, therefore, the law must allow some action based on faith in the resolution of individual cases.

This faith-based element of adjudication has in the common law system frequently been called conscience. In fact, conscience's role is historically most obvious in contract law cases, where it has been prominent since the birth of the common law. Part I illustrates this point. Medieval English lawyers, formally all Christians, explicitly admitted the role of faith or conscience in contract law adjudication. Acts of conscience were, to them, law.

Has the practice of law since changed so as to preclude a role for conscience in adjudication now? Part II answers "no." Drawing on the jurisprudential writings of A.W.B. Simpson, Phillip Bobbitt, Pierre Schlag, and other legal philosophers, Part II demonstrates that law's post-modern practice shares with its pre-modern structure a role for conscience. Law as part conscience is not a positivist view of law, nor does it suggest that law springs solely from nature. Rather, it freely admits faith's role and encourages the development and education of conscience among those who participate in lawmaking.

By the time the paper turns to Part III, where salvific freedom is discussed, conscience can be seen to fill in the gaps left by the generality of the doctrine of the state. Where published revelation fails to guide, the jurist can learn by study and faith, and by seeking further revelation, to serve the salvific freedom of the human family. Part III ends with the proposal that the faith and conscience of those who participate in law are best educated through the gospel of Jesus Christ; the most righteous, honest, and wise will be the most just. As the consciences of those involved in making contract law are sanctified, so will contract law come to serve its theologically ordained purposes. Salvific freedom and conscience thus answer how contract law might best serve God.

I thank the conference organizers and the BYU Law Review for the opportunity to express this view. Professor Andersen unfortunately omits a Latter-day Saint ("LDS") perspective on contract law from his paper. His primary thesis categorizes promises according to their moral and spiritual content.2 He suggests that our legal treatment of oaths or marriage vows may be a moral barometer for our culture.3 And he argues that the recent legal trend of treating marriage more like a commercial contract suggests that our culture fails to see marriage's moral and spiritual nature.4 These are comments about culture, not law.

Professor Andersen does talk about law. But he describes laws regarding economic promises, the oath, and marriage largely the way any lawyer would.5 He describes historical and generally religious perspectives on oaths and marriages themselves.6 And he suggests that treating marriage covenants similarly to the way we treat economic promises-allowing laissez faire-may ascribe to self-interest more value than it deserves.7 But he offers no prescriptive role for law, and no critique of law, and leaves us wondering whether there is a uniquely LDS perspective on law itself. The negative implication of Professor Andersen's omission is that there is no such perspective.8 The scriptures, however, clearly show one.9