Dismembered Goats and the Philosophy of Contract Law

My latest offering is now up on SSRN for your enjoyment. This particular paper began with a simple question: “Why did people in the ancient world formalize their contracts by hacking up a goat?” Here’s the abstract for the paper that resulted:

In the ancient Near East, contracts were often solemnized by hacking up a goat. The ritual was in effect an enacted penalty clause: “If I breach this contract, let it be done to me as we are doing to the goat.” This Article argues that we are not so far removed from our goat-hacking forbearers. Legal scholars have argued that contractual liability is best explained by the morality of promising or the need to create optimal incentives in contractual performance. In contrast, this Article argues for the simpler, rawer claim that contractual liability consists of consent to retaliation in the event of breach. In the ancient ritual with the goat, the retaliation consented to consisted of self-help violence against life and limb. The private law in effect domesticates and civilizes retaliation by replacing private warfare with civil recourse through the courts. It thus facilitates the social cooperation made possible by the ancient threats of retaliation while avoiding the danger of escalation and violence that such private violence presented. This civil recourse theory of contractual liability provides an explanation for a number remedial doctrines that have proven difficult for rival interpretations of contract law to explain, including the penalty clause doctrine, limitations on expectation damages, and the basic private law structure of contractual liability. Finally, this Article responds to some of the most powerful objections that might be made against a civil recourse theory of contractual liability.

The article, “Consent to Retaliation: A Civil Recourse Theory of Contractual Liability,” is, to my knowledge, the first full-length article on civil a recourse theory and contract. Civil recourse, of course, has been a much discussed topic in the philosophy of tort law, where it has been championed by John Goldberg and Benjamin Zipursky. My take on the normative foundations of civil recourse, however, is a bit different than theirs. Hence, in addition to illuminating the mystery of the hacked up goats, my hope is that the article will contribute to debates in the philosophy of contract law and the philosophy of private law more generally. Enjoy!

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5 Responses

  1. Logan says:

    Nate,

    Your theory is very similar to that of the English School in International Relations theory (Check out Hedley Bull, “The Anarchical Society”). Basically, Bull says States consent to things like the WTO and UN because of their legalized (or socially accepted) means of retaliation. Of course, problems arise when a contract is broken but for whatever reason the court(s) decide not to enforce any legalized punitive action(s) (or in IR when China decides not to back UN sanctions against Iran making any punitive actions less effective).

    Overall, I thought the article was a good read (coming from the perspective of an IR academic with only two undergraduate courses relating to contract law). I also find it interesting that this theory hasn’t been applied to this field as of yet; given it’s importance in IR theory for several decades.

  2. Nancy says:

    I just read another paper on early forms of retaliation and dueling with a similar intro as yours – but it focuses on Evidence law, not Contracts. I love when authors remind us of the crazy origins of our modern system.

  3. Nancy says:

    Here’s a link to the paper I mentioned in case anyone is interested: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1553455

  4. Kaimi says:

    What a hack job — this really gets my goat.

  5. Rob Veal says:

    Without enforcement, what good is deterrence? Without deterrence, what good is the contract? Without the contract, of what value is the law itself?
    If we don’t take the blade to the one who has breached, we remove the purpose of the ritual. Without any purpose to the ritual, there is no foundation to the agreement. Without such foundations, the structure of the agreement begins to dissolve.