Wayward Contracts: The Crisis of Political Obligation in England, 1640-1674


Why did the language of contract become the dominant metaphor for the relationship between subject and sovereign in mid-seventeenth-century England? In Wayward Contracts, Victoria Kahn takes issue with the usual explanation for the emergence of contract theory in terms of the origins of liberalism, with its notions of autonomy, liberty, and equality before the law.

Drawing on literature as well as political theory, state trials as well as religious debates, Kahn argues that the ...

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Wayward Contracts: The Crisis of Political Obligation in England, 1640-1674

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Why did the language of contract become the dominant metaphor for the relationship between subject and sovereign in mid-seventeenth-century England? In Wayward Contracts, Victoria Kahn takes issue with the usual explanation for the emergence of contract theory in terms of the origins of liberalism, with its notions of autonomy, liberty, and equality before the law.

Drawing on literature as well as political theory, state trials as well as religious debates, Kahn argues that the sudden prominence of contract theory was part of the linguistic turn of early modern culture, when government was imagined in terms of the poetic power to bring new artifacts into existence. But this new power also brought in its wake a tremendous anxiety about the contingency of obligation and the instability of the passions that induce individuals to consent to a sovereign power. In this wide-ranging analysis of the cultural significance of contract theory, the lover and the slave, the tyrant and the regicide, the fool and the liar emerge as some of the central, if wayward, protagonists of the new theory of political obligation. The result is must reading for students and scholars of early modern literature and early modern political theory, as well as historians of political thought and of liberalism.

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Winner of the 2006 Best Book Prize, Pacific Coast Conference on British Studies
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Product Details

  • ISBN-13: 9780691117737
  • Publisher: Princeton University Press
  • Publication date: 8/30/2004
  • Pages: 392
  • Product dimensions: 6.40 (w) x 9.30 (h) x 1.20 (d)

Meet the Author

Victoria Kahn is Professor of English and Bernie H. Williams Professor of Comparative Literature at the University of California, Berkeley. She is the author of "Machiavellian Rhetoric" (Princeton).
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Wayward Contracts

The Crisis of Political Obligation in England, 1640-1674
By Victoria Kahn

Princeton University Press

Copyright © 2004 Princeton University Press
All right reserved.

ISBN: 978-0-691-11773-7

Chapter One

LANGUAGE AND THE BOND OF CONSCIENCE Syllables govern the world [All Power is of God] means no more than Fides est servanda. When St. Paul said this, the people had made Nero Emperour. They agree, he to command, they to obey.

If our Fathers have lost their Liberty, why may not we labour to regain it? Answ. We must look to the Contract, if that be rightly made we must stand to it. If we once grant we may recede from Contracts upon any inconveniency that may afterwards happen, we shall have no Bargain kept ... Keep your Contracts, so far a Divine goes, but how to make our Contracts is left to our selves. I tell you what my Glove is, a plain Glove, and pretend no virtue in it, the Glove is my own, I profess not to sell Gloves, and we agree for an hundred pounds. I do not know why I may not with a safe Conscience take it. The want of that common Obvious Distinction of Jus praeceptivum, and Jus permissivum, does much trouble men. -John Selden, Table Talk

IN THE EPIGRAPHS to this chapter, Selden muses on the language of political obligation. Fides est servanda was a tag familiarfrom classical rhetoric, Roman law, the church fathers and canon law, and articulated the principle that we have a moral obligation to keep our promises, an obligation that seventeenth-century jurist and antiquarian John Selden elsewhere traced to a divine command. Fides est servanda meant that one's bare promise or word was binding, even in the absence of any written documentation or tangible proof of exchange; the technical term in civil and canon law was nudum pactum. But Selden, who was a preeminent scholar of the common law and always kept in mind the practical realities of human interaction, was less interested in bare promises than in how a moral obligation becomes a legal one. Thus he insisted that contracts needed to be made correctly, according to convention and positive law. God tells us to keep our promises but "how to make our contracts is left to ourselves."

This concern with convention inflects Selden's question about the political contract. Characteristically, Selden answers his own question about regaining political liberty with a discussion of economic contracts and the necessity of keeping one's bargain. This move is authorized by the theological distinction, familiar from Suárez, Grotius, and others, between divine precept and permission. Although God commands us to keep our promises, he permits human discretion about the manner in which we promise and thus the definition of binding promises. So if we want to understand whether a contract is binding, it is not enough to look to the nudum pactum principle of fides est servanda; we must look instead to the particular contract, to see if "that be rightly made." If God is the remote cause of binding contracts, by virtue of his power to punish, convention is the proximate cause, not least of all the conventions of legal language. In this case, it is not conscience that authorizes the bargain; rather, conscience is freed from any reservations about shady deals by the fact that the seller has acted according to the conventions of exchange and has, moreover, "pretend[ed] no virtue" in the glove he wishes to sell.

Selden immediately makes it clear that the principle that we must keep our promises does not mean that we cannot change our minds. Contracts by definition concern changeable human experience, contingent negotiations, not universal laws: "This is the Epitome of all the Contracts of the World, betwixt man and man, betwixt Prince and Subject, they keep them as long as they like, and no longer." In the charged political climate of the early seventeenth century, "keep them as long as they like, and no longer" might suggest that Selden thought of contracts in revolutionary terms. But, although Selden was an outspoken defender of parliamentary liberties in the 1620s and a critic of Charles during the Long Parliament, he insisted on the binding power of public and private contracts alike. "Every law," he remarked, "is a Contract between the King and the People, and therefore to be kept. An hundred men may owe me an hundred pounds, as well as any one man, and shall they not pay me because they are stronger than I? Object. Oh but they lose all if they keep that Law. Answ. Let them look to the making of their Bargain." Contracts for Selden were not merely expedient human arrangements to be broken when they no longer served private interest. Rather, contracts stood between men and brute force, between the individual and the hundred stronger men; they stood as well between society and the potentially subversive force of enthusiasm, the individual unrestrained by social agreements but empowered by his assurance of a heavenly contract. For Selden, this possibility was represented by the Anabaptist, of whom Selden asked rhetorically, "If we once come to leave that out-loose, as to pretend Conscience against Law, who knows what inconvenience may follow?"

This chapter explores the discourses that Selden and his contemporaries drew on in elaborating their arguments about the new contracting subject: a continental and chiefly Protestant discourse of natural rights, a native tradition of covenant theology, and a heightened consciousness of the common law as a bulwark against the royal prerogative and a repository of ancient liberties. Each of these discourses came into its own in the early decades of the seventeenth century and each developed its own view of the relationship of the individual conscience to social and linguistic convention. To the construction of the contracting subject, natural rights discourse contributed both a minimalistic account of obligation and a Ciceronian narrative about the power of language to bring into existence new rights and obligations. The common law elaborated a legal fiction of the contracting subject that illustrated a new confidence in the adequacy of human agreements to secure or constrain intention. Covenant theology contributed the enabling fiction of the heavenly contract, a biblical narrative of the role of the covenant in history, and a theologically charged interpretive activism. Each of these discourses meant something different by "contract," and each provided a different account of the subject who consents to a contract. In the decades leading up to the civil war, however, these discourses fed on and borrowed from each other to produce a heightened sense of the artifice, conventionality, and eventually the arbitrariness of political obligation.


In the late sixteenth and early seventeenth centuries, a new conception of natural law emerged in response to the legitimation crisis brought about by the Reformation, the consolidation of nation-states, and the outbreak of religious wars. These wars dramatically illustrated the dangers of religious enthusiasm, the potential violence of acting on one's conscience, and the manifold exceptions to the moral law that promises should be kept. All of a sudden it became necessary to rethink the basis of political association, political obligation, and the respective duties to God and sovereign. Aiming to provide a nonconfessional basis of social harmony and political order, continental writers resorted to the time-worn language of natural law and natural rights. But in contrast to older Aristotelian, Stoic, and canon law conceptions of natural law as the moral law or the objective law of reason, they elaborated a minimalist conception of natural law centered on sociability, self-interest, and the subjective right of self-preservation. In the minds of its proponents, this "minima moralia" offered a new, artificial method for generating political association. Whereas older doctrines of natural law were predicated on the belief in a natural moral order dictated by God, these newer doctrines drew nearer to "the developing scientific view of the world as totally neutral with respect to value." God was still the creator of the world, but man was the proximate creator of value by virtue of his voluntary social and political arrangements. Chief among these was the contract to transfer one's rights to the sovereign and to establish government.

In the early seventeenth century, the preeminent treatment of natural law for the new world of nation-states and confessional differences was Hugo Grotius's great treatise of natural law jurisprudence, De jure belli ac pacis, first published in 1625. A Dutch humanist scholar who was sympathetic to the Arminians and who had escaped to Paris after the Statholder Prince Maurice threw his weight to the Calvinists, Grotius was responding to the religious wars raging on the continent, wars that were the occasion of intense interest and foreign policy debate in England in the 1620s. In De jure belli, Grotius's English readers found the new minimalist theory of natural law, a contractual account of political association, and an analysis of the right of resistance. These arguments were of interest to royalists and republicans alike. We know that Filmer was reading Grotius in the 1630s. Hobbes certainly knew his work; and Milton, impressed by Grotius's learned arguments, sought him out in Paris in 1638. Robert Sidney, the second earl of Leicester (and father of Algernon), also met Grotius in Paris in the 1630s and recorded his thoughts on Grotius's theories in his commonplace book. With the outbreak of civil war in England, Grotius's arguments would become directly relevant to the conflict at home. As Jonathan Scott has remarked, between 1640 and 1670 Grotius was "preeminent as a modern European influence upon English political thought." This influence, I suggest, cannot be separated from Grotius's humanist confidence in the power of language to subdue irrational conflict. In De jure belli, the social and political contract necessarily involved reflection on what we might call a linguistic contract and on the social construction of rights and obligations.

Cicero is the most important classical source for Grotius's attention to the social and linguistic contract. In his moral and rhetorical works Cicero provided two accounts of the contractual origins of society. In De inventi-one, Cicero painted a picture of men wandering in a state of nature until they were brought together by the powerful eloquence of a single individual. Only then did they establish communities and "give shape to laws, tribunals, and civil rights." In this version of the original social contract, Cicero described asocial individuals voluntarily subjecting themselves to the new social order. By contrast, in De officiis, the most influential Latin work of moral philosophy in the early modern period, Cicero advanced a Stoic view of man's natural sociability and natural disposition to form contractual political associations. According to Cicero, nature is the source of the principles of community among men, who are joined together "naturali quadam societate" (1.16.50), "in a certein naturall felowship," as one sixteenth-century translation has it. Societas-the Latin term for a legal partnership-is Cicero's metaphor for this distinctively human community, this willed but natural association.

Cicero also invited his readers to think about language in contractual terms. At times, Cicero presented rhetoric as the handmaiden of natural sociability. At other times, Cicero argued that rhetoric rather than sociability, convention rather than nature, formed the basis of social and political organization. But in both cases, a precondition of justice or what Cicero called the "societas juris" is the bond or "societas" of language. Language is both a precondition of obligation and itself a source of obligation. In De inventione Cicero famously celebrated the power of language to create different forms of association: "[M]any cities have been founded, ... the flames of a multitude of wars have been extinguished, and ... the strongest alliances and most sacred friendships have been formed not only by the use of reason but also more easily by the help of eloquence" (1.1). And in De officiis he described language itself as a common bond or form of association: "[N]ature, likewise by the power of reason, associates man with man in the common bonds of speech and life [orationis et ... vitae societatem]" (1.4.12). He alternately presented the gift of speech as reflecting human rationality or bringing it into being. The first account was predicated on natural law as the source of right reason, whereas the second implied the conventional establishment of rights and the imposition of political order.

In De jure belli ac pacis, Grotius did not simply use the prestige of Ciceronian rhetoric and moral philosophy to make neoscholastic arguments about contractual association more palatable, as has sometimes been argued. Instead, he drew on Cicero to recast earlier arguments about contractual association as powerful secular and rhetorical fictions appropriate to the early modern crisis of foundationalism. Cicero provided Grotius both with a secular narrative of political association and with a conviction that language can itself create the association it presupposes. Grotius, in turn, updated Cicero for the new world of nation-states and confessional differences by presenting natural law as first and foremost a matter of individual rights.

In the prolegomena, Grotius threw down the gauntlet by declaring that natural law was binding on all, regardless of religious belief or even the existence of God: "[W]hat we have been saying [about the existence of a natural law of justice] would have a degree of validity even if we should concede [etiamsi daremus] that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him." Grotius's "etiamsi daremus" could be described as a hypothetical, strategic, or artificial skepticism, designed to respond to irrational dogmatism and religious wars. As such, it was arguably the grandfather of all such strategic fictions in natural rights discourse, including that of the social contract itself. Following upon this initial hypothesis, Grotius focused on natural rights. Whereas natural law referred to an objective order of duties, natural right referred to subjective faculties and powers-such as the freedom to defend oneself and one's property. Along with natural sociability, Grotius argued, the natural right of self-preservation provided the lowest common denominator for individuals of conflicting religious beliefs and thus a particularly compelling motive for entering into a political contract.

This minimalism in turn focused attention on the human realm of conventional agreements, the realm of the secondary law of nature. Although the principles of primary natural law-including the law that individuals should keep their promises-are by definition unchanging, the precise form they take in individual choices and in the law of nations may vary. In reality, human beings have a great deal of discretion in implementing their own social and political arrangements, and promises and contracts are the vehicles by which they do so. This explains the very large place given in De jure belli not to Aristotelian and neoscholastic virtues but to what we might call the social and linguistic mechanisms of obligation, including verbal and written promises, oaths, contracts, vows, treaties, and professions of political allegiance.

For seventeenth-century readers, the centerpiece of De jure belli was Grotius's contractualist account of property, society, and government. Like some of his medieval predecessors, Grotius asserted that there was initially no property in the state of nature: all things were held in common. As population increased, people became less trustful and their needs more elaborate. At this point private property or dominium was introduced by agreement or contract (pactum). But once it was brought into being by human agreement or secondary natural law, humans were morally and legally obliged to respect the property rights of others. Grotius made a similar argument about society: men joined together "to form civil society not by command of God, but of their own free will." They then transferred their rights of self-protection and dominion in exchange for protection, security, and what Hobbes would later call "commodious living." Although conceding that some governments have their origin in conquest or inheritance and others in the will of the people, Grotius described government primarily in Ciceronian terms as a voluntary association: "The state is a complete association [coetus] of free men, joined together for the enjoyment of rights and for their common interest." Still later, he insisted that, for those "who unite to form a state" by a "voluntary compact" (voluntate contractum) sovereignty cannot be alienated without the people's consent."


Excerpted from Wayward Contracts by Victoria Kahn Copyright © 2004 by Princeton University Press. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Acknowledgments xi
Abbreviations xiii
CHAPTER 1. Introduction 1
From Virtue to Contract 8
The Psychology of Contract 13
Poetics and the Contract of Genre 15
The Usual Story 20
The Road Ahead 25
PART I: An Anatomy of Contract,1590-1640 29
CHAPTER 2. Language and the Bond of Conscience 31
Natural Rights Theory: The Social Contract and the Linguistic Contract 33
The Common Law: Magna Carta and Economic Contract 41
Covenant Theology: Divine Speech Acts and the Covenant of Metaphor 48
CHAPTER 3. The Passions and Voluntary Servitude 57
The Slave Contract 60
The Law of the Heart 64
Free Consent 73
PART II: A Poetics of Contract, 1640-1674 81
CHAPTER 4. Imagination 83
Five Knights: From Promise to Contract 85
Shipmoney and the Imagination of Disaster 90
Henry Parker and the Metaphor of Contract 95
Falkland, Chillingworth, Digges, and the Fiction of Representation 104
CHAPTER 5. Violence 112
Prophesying Revolution 113
The Metaphorical Plot 120
CHAPTER 6. Metalanguage 134
The Problem of Essex 138
Hobbe's Critique of Romance 141
The Contract of Mimesis 147
Hobbesian Fictions 151
Method and Metalanguage 154
Hobbes's Readers or Inescapable Romance 166
CHAPTER 7. Gender 171
Political Contract and the Marriage Contract 174
The Politics of Romance 177
Passion and Interest 180
Contract on Trial 185
The Sexual Contract 189
The Paralogism of Romance 192
CHAPTER 8. Embodiment 196
Resistless Love and Hate 198
Paradise Lost and the Bond of Nature 207
Pity or Fear of Violent Death 214
CHAPTER 9. Sympathy 223
Wise Compliance 227
The Politics of Pity 234
Sympathy between Men 241
CHAPTER 10. Critique 252
Reason of State 254
Samson as Exception 262
Reasoning about the Exception: Dialectic and Equivocation 264
Taking Exception to Pity and Fear 270
Political Theology and Tragedy 276
CHAPTER 11. Conclusion 279
Notes 285
Index 365

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"This is an utterly remarkable book. Kahn is an immensely gifted historian of political theory—though that conventional pigeonhole threatens to obscure much of what is distinctive about her work. Here Kahn effortlessly breaks new ground and overturns longstanding orthodoxies. Whether she is flyspecking well-worn passages in Milton or exploring obscure works by Percy Herbert, Kahn is original and perceptive. She has illuminating things to say about the texts and about the big-picture theoretical stakes, and those two enterprises fit together very nicely indeed."—Don Herzog, University of Michigan, author of Poisoning the Minds of the Lower Orders

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