Private Right and Common Good

On Wednesday, June 10, 2020, Professor James Gordley gave an outstanding (virtual) lecture at our Centre for Privacy Studies.

James Gordley is an expert in comparative and contract law. He studied in Chicago and Harvard, and was professor at the University of California (Berkeley), before coming to Tulane University (New Orleans).  In 1991, he published the Philosophical Origins of Modern Contract Doctrine with Oxford University Press. This work reshaped the way of thinking about the history of private law. Before Gordley, only a few historians had investigated the impact of the theology of Thomas Aquinas and the late scholastics on the field of contract law.

A few years later, in 2006, James Gordley authored Foundations of Private Law. Property, Tort, Contract, Unjust Enrichment. In this book, he expanded the original thesis of the crucial importance of the Aristotelian Thomistic tradition for the development of modern private law. In 2013 he published The Jurists: A Critical History. Here, he explored the history of Western legal thought from the Romans till nowadays.

Among his innumerable articles, I would like to remember Law and Religion: An Imaginary Conversation with a Medieval Jurist published in California Law Review Vol. 75, 169-183. Gordley tried to imagine a conversation between a modern student of law and a fourteenth-century law professor in Bologna. This article, I believe, is very thought-provoking. I quote here a few passages from the introduction:

James Gordley’s lecture was about private right, common good, and how these two fit together. I will give here a brief account of the lecture with no aim of completeness. Private right and common good were in harmony in the writings of the late scholastics. Modern liberalism disrupted this harmony. Aquinas used the word ius to mean what one was allowed to do. Aquinas and other medieval theologians and jurists demanded restitutio of the stolen thing as a requirement for obtaining forgiveness. Salvation was only granted through confession of sins. In order to be absolved in the confessional, the Christians had to return things they had stolen. Restitutio also concerned honour, reputation etc. Therefore, commenting upon Aquinas Francisco de Vitoria proposed to use the term ius, ius (right) as what one is allowed to do.

Nineteenth-century scholars focused on the will of the right owner: the owner can do what he wants from his property. Contemporary jurists criticized this theory because it does not explain the limits established by the law. The law can limit contracts and property. A contract is not always enforced according to the will of the parties. On the other hand, the late scholastics argued that property is not an absolute right. The limits of the rights are delimited by justice. For example, a contract is limited by the equality of commutative justice. The innovation of nineteenth jurists, Gordley concluded, was not to introduce the concept of will, but it was to leave out the consideration of justice.

With regard to public good, Gordley affirmed that the late scholastics defined it according to three common features. Human beings live in a community because the human being is a social animal. The choice to be in the community is voluntary, but it is the only choice man can do. A community must also choose his form of government: monarchy, aristocracy, or democracy. Once this choice has been made, people must stick to it. There is a right to resist against the tyrants when they no longer rule for the common interest but for their private interest.

Finally, Professor Gordley delineated the relationship between private right and common good.  Thomas Aquinas also used ius to mean the virtue of justice and not not the objective right.  Following Aristotle, he distinguished between general justice and particular justice. Justice is to preserve happiness. Particular justice is either distributive or commutative. Thus, ius both meant general justice and the right that belongs to a particular person.

Aristotle described general justice as part of every virtue. Justice is a complete virtue. Aquinas explained that the good of any virtue is the common good towards general justice. All acts of virtue pertain to general justice insofar as they direct man to the common good. Thus, the preservation of a private right is directed towards the common good. Every virtue contributed to the happiness of the state. The good of any virtue can be referred to the common good.

This was a very short sketch. Professor Gorgley’s lecture was much more complex and fascinating. We were really honoured to have him at our centre. For those of you who are interested, the lecture will be published in our podcast.

 

 

Public Morality or Privacy?

The Coronavirus crisis offers many points of reflection about privacy. My colleagues Anni Haahr Henriksen, Natália da Silva Perez, Natalie P. Koerner, and Natacha Klein Käfer have excellently dealt with many of them. One major issue is represented by the increasing governmental powers of surveillance. Arguing that surveillance will prevent the spread of the novel Coronavirus (COVID 19) governments are starting to use apps, drones, and other forms of technology that erode the citizen’s right to privacy.

It is not a novelty that technology is accused of going against the right to privacy. Ten years ago the founder of Facebook already stated that privacy is no longer a social norm. But now governments can use technology to control the movements of citizens. At the moment, apps and similar instruments seem to be restricted to health needs and time-limited. But what happens if governments choose to use them permanently and for other needs? For example, the police might determine whether the author of a crime was actually on the crime-scene. Public authorities might be able to know where we are and use this information in a trial (e.g. to sanction violations of the lockdown).

What happens if a piece of information about our ‘private’ life becomes public? What happens if public authorities use this information in a civil or criminal process?

These questions about the boundaries between public and private were, albeit in a different way, also discussed in the medieval and early modern period.  Judges might have had to decide whether to use information obtained outside of the trial, without the observance of processual rules, to decide a case. For example, suppose that Titius has claimed that Caius owed him a large sum of money by virtue of a contract concluded in Paris. The judge knows for sure that Caius was not in Paris at that time. The evidence against Caius is therefore false. But is the judge allowed to use this information?

Strictly speaking, processual rules did not allow that. Judges were only allowed to use evidence introduced by the parties. But judges were both legally and morally responsible for pronouncing the right decision. They were not only demanded to comply with processual rules, but also to obey their conscience. They answered for their acts before God. The salvation of the soul was a deep concern and a wrong decision could send the judge’s soul to hell.[1] The dilemma at hand, then, was whether the judge should base his decision on evidence or conscience.

The most influential Catholic theologian, Thomas Aquinas (1225-1274) famously affirmed that the judge exercises a public function and for this reason should only use his knowledge as a public person, not what he knows as a private person. Procedural order must have rigid limits and what the judge knows privately, outside of the trial, must not be used. Aquinas distinguished divine judgment (God knows the truth) from human judgments, which are regulated by processual rules and aim to processual truth. [2] Following the path charted by Aquinas, the Spanish Catholic jurist and theologian Diego de Covarrubias y Leyva (1512-1577) stated that a judge could lawfully pronounce a sentence on the exclusive basis of the evidence, even if this was against what he knew privately.[3]

The great Lutheran jurist Johann Oldendorp (1486-1567) argued instead that the judge should avoid a lie.[4] Saying something that differs from what we know is a lie. If we know that someone is innocent, we have to act accordingly. Aquinas separated a conscience formed through a man’s personal knowledge from a conscience formed according to public judgment.[5] Oldendorp responded that the judge cannot have a double conscience. Conscience cannot be divided. A judge should draw on his conscience. Along the same lines, the Reformed theologian Markus Friederich Vendelin (1584-1652) affirmed that nobody is obliged to condemn an innocent or acquit a guilty publicly or privately (innocentem damnare et nocentem absolvere privatim vel publice, nemo tenetur).[6] What the judge knows in private should correspond to his public decision.

“Italy, Rome, Scala Santa: Passion of Christ sculpted by Ignazio Jacometti (1854). Jesus is showed to the crowd by Pontius Pilate.”

Early modern theologians and jurists also brought Pontius Pilate into this debate. Pilate knew that the high priests had handed Christ over to him out of jealousy. Should he have used this (private) information and acquitted Christ? According to the famous Wittenberg theologian, Friederich Balduin (1575-1627), Pilate knew that the high priests’ accusations were false and that he had condemned an innocent to death.[7] Some years later, Johann Steller (1641–?), a jurist from Jena, affirmed instead that Pilate should be excused because he was acting as a magistrate and therefore had to follow the accusations of the high priests. [8]

Conscience or evidence? The Helmstedt Lutheran theologian, Conrad Horneius (1590-1649) observed that the judge who ignores what he knows privately can be a liar and condemn an innocent to death. On the other hand, however, considering the life of a private man in a judgment could destroy processual order and lead to the dissolution of the state. [9] To Horneius, judicial powers should be regulated by processual rules that forbid judicial arbitrariness. These rules must have limits that safeguard private life.

Early modern scholars continued to debate this issue without providing a definitive answer. Nonetheless, their contribution can help us to reflect on the possible outcomes of the Coronavirus crisis. Overwhelming judiciary powers might sound morally promising: they might be instrumental in avoiding an unjust sentence or help to convict a criminal that otherwise would not be punished. But they can also lead to a devastating invasion of privacy. Which aspect should be prioritized? The moral necessity to pursue truth or the defense of our privacy?

Public authorities are starting to use apps that control our movements in order to prevent the spread of the novel Coronavirus. Through these apps, authorities are able to know about our location. Should this information become public or should it remain private? Should the law grant public authorities the right to use this information in a trial?

Our privacy is proportional to the powers the public authorities have to control us. An increase in their powers means a decrease in our liberty. By admitting these apps as legal means of proof, the states will build extensive surveillance systems. They will collect and use our geolocation data. On the other hand, the restriction on our liberty might also have positive effects. Digital surveillance might facilitate the repression of crimes and help judicial authorities to avoid the conviction of an innocent.

There is a tension between privacy and public morality. Privacy might prevent the public authority from pursuing the common good (in this case the public health). As such, it might be seen as a selfish right. But, then, why is it so important for us?

[1] James Q. Whitman, The Origins of Reasonable Doubt. Theological Roots of the Criminal Trial (Yale University Press, 2008); Wim Decock, ‘The Judge’s Conscience and the Protection of the Criminal Defendant: Moral Safeguards against Judicial Arbitrariness’ in Georges Martyn and others (eds.), From the Judge’s arbitrium to the Legality Principle (Duncker & Humblot, 2013), 69-94.

[2] Thomas Aquinas, Summa theologiae, IIaIIae, q. 67, a. 2.

[3] Judit Bellér, ‘De insontibus non condemnantis. Conflitti di coscienza del giudice nella giurisprudenza tardo-medievale’ (1991) XXI, n.2, Materiali per una storia della cultura giuridica, 299-300. Diego de Covarruvias y Leyva, Variarum ex iure pontificio regio, et caesareo resolutionum (Venetiis, 1565), lib. 1, 7-10.

[4] Johannes Oldendorp, De iure et aequitate disputatio forensis (Francofurti, 1611), 137–138.

[5] Thomas Aquinas, Summa theologiae, IIaIIae, q. 67, a. 2.

[6] Markus Friederich Vendelin, Philosophia moralis, (Hardervici, 1654), 685.

[7] Friederich Balduin, Tractatus de casibus conscientiae (Wittenbergae, 1628), 1174.

[8] Johann Steller, Defensus Pontius Pilatus (Dresdae, 1674), tertium caput nn. 92–100.

[9] Conrad Horneius, Philosophiae moralis sive civilis doctrinae de moribus libri IV (Francofurti, 1633), 629.

Reforming the Morality of Private Business. The Early Modern Lutheran Theologians on Loans at Interest

Today usury consists in lending money at excessive rate of interest. At the threshold of the sixteenth century, usury was the practice of lending at interest. Whatsoever interest in a loan, not only a high rate of interest, was prohibited. The interest prohibition originated in the tradition of the Roman Catholic Church. This prohibition continued to be effective among the Lutheran reformers but it underwent profound changes. In this post, I will give a brief and general overview of these changes and its implication for private business. The reader who wants more information can consult my book Lutheran Theology and Contract Law in Early Modern Germany.

Medieval canonists and theologians pointed out many reasons against lending at interest, but here we only focus on one: the famous passage of Luke 6:35, where Christ ordered to lend hoping for nothing. This passage was incorporated in a canon law norm forbidding the practice of interest. As lending should be gratuitous, a different type of contract was invented: the sale of annuity. This contract produced effects similar to a loan, but it was a sale and therefore, according to several theologians and canonists, it was lawful. In sixteenth-century Germany, a special form of this contract was very popular: the so-called five per cent contract. In this operation the investor lent to the entrepreneur the capital, to use for business, with a clause that guaranteed that the investor would recoup not only the capital but also a fixed part of the profits of the entrepreneur (5% of the invested sum).

In his first sermons on usury, Martin Luther (1483-1546) condemned the five per cent contract as a usurious contract. He repeated the teachings of the canonists: loans should only gratuitous. Besides, he added that the entrepreneur looks at his private interest forgetting the neighbour and therefore he is acting against the precept to love the neighbour. A few years later, Holy Roman Emperor Charles V (1500-1558), considering the nature of this contract, a sale and not a loan, legalized it. Even though this contract was formally defined as a sale it was in substance a loan. Practically speaking, lending at interest was legal. This created a fundamental problem for Luther’s disciples: to condemn the five per cent contract or to approve it; to refuse the secular law or to accept it. How was one to reconcile the interest prohibition with the new law of finance? The theologians argued that not every loan at interest is forbidden.  Only if charity towards the neighbour is offended, does a loan at interest go against the interest prohibition. They did not prohibit every loan at interest in general, as did their Catholic colleagues, but left to the individual Christian to choose whether a contract is against charity and thus a violation of the interest prohibition.

The new theory derived in great part from a reinterpretation of the precept of Luke 6:35. Philip Melanchthon (1497-1560) interpreted the precept of Luke 6,35 as only concerning the lending to indigents. In this way, he eliminated business transactions from the range of application of the prohibition on lending at interest. Similarly, Johannes Brenz (1499-1570) interpreted the precept of Luke 6,35 as not pertaining to every Christian but only the poor. We read here an excerpt from his sermons to Luke 6,35: if the love for the neighbour is really true, it does not only bring with it that civil form of justice, making you lend to somebody from whom you hope something in return; it also makes you lend to the needy and poor, from whom you hope nothing in return. Everyone in fact loves himself so much that he desires to receive a loan when he is oppressed by necessity or poverty, even if he cannot repay it. (…) If the precept of Luke is to relieve the poor and lend to them gratuitously, will it be illicit to use civil contracts, in which returns are equal, with the rich people and those who possess lands? Shall I lend hoping for nothing in return even to the rich and those possessing lands? Not at all. The rule of love asks me to love the enemies when I am turned towards the enemies, as we said earlier, while at the same time I must love the friends when I am turned towards them. The same is true in a loan: when I am turned towards the poor, I have to take care of them as much as I can, but, by the same token, when I am turned towards the rich, land-owners and those possessing other things, I will be allowed to use civil contracts with them.

Thus, Brenz distinguished two categories of people, the rich who can practice the five per cent contract and the poor to whom it is forbidden. Johannes Aepinus (1499-1553) went further and proposed a threefold classification: the beggars, the working poor and the rich. Alms regard the first class, loans are for the second class, and business contracts can be stipulated among people of the third class. The effect of the new interpretation is that Luke 6,35 only concerns gratuitous loans to the poor. Private business can be practiced as long as it is between rich people.

To Urbanus Rhegius (1489-1541), in order to be usurious, a loan must not only provide a charging of interest but also harming the neighbour. Therefore, the Christians are called to apply the five per cent contract according to natural law and Christian charity. Charging interest is only forbidden when it harms the other contracting party. With an emphatic expression, Rhegius wrote that the Christian must firstly have before his eyes natural law and the love for the neighbour. Aegidius Hunnius (1550-1603) and Johann Gerhard (1582-1637) similarly held that the passage of Luke 6,35 should be interpreted as forbidding only the loans that harm the neighbour. It occurs especially with the loans at interest towards the poor.

Before concluding an agreement the businessman must ascertain the qualities of the other contracting party. The loan could only be concluded if the debtor could afford it. What happens then if the rich become poor because of an unexpected circumstance? The theologians responded that charity as a moderator and director shall mediate between the parties, and after consideration of the circumstances shall order to remit the interest or also the principal. Indeed, as Gerhard explains, when men of the third class are reduced to the second class, then loans towards them must be gratuitous, and when they are reduced to the first class, they are should be helped with alms. The solution was, therefore, the remission of debt when the debtor cannot repay it because of an unexpected negative circumstance.

In sum, the Christians are responsible to make sure that charity is observed. They have to protect the other contracting party from damages, and assist him in case of necessity. This is a judgment that concerns the detailed circumstances of every agreement. The Christian has to decide whether his private business is against charity. Charity implies the mitigation of law under particular circumstances. Christians must decide whether to apply the law, whether to execute a certain financial operation or whether to enact a specific contractual term on the basis of charity.

Roman Catholic theologians and canon lawyers built an absolute prohibition against lending at interest, established in the canon law. But then by way of exceptions, they allowed many financial transactions. The Lutherans placed the Scriptures at the center of the system. From an absolute prohibition of interest, the theologians devised a prohibition to harm the neighbour by charging an excessive interest rate. This prohibition was especially geared in favor of the weaker party, the poor. The Lutherans stressed the responsibility of the single Christian to avoid damaging the other contracting parties in the concrete situation while the Roman Catholics permitted a larger number of financial techniques by the authorization of priests, who circumvented de facto the strict prohibition. Once these authorities gave green light the conscience could be free to pursue one’s interest, unconcerned for the real situation of the other party.

As we have seen in our precedent post, for the early modern Lutheran theologians private property should be moderated by charity. The private is not absolute but depends on the needs of the neighbour. Here it is the same. Private business is not entirely private. The Christian has not to look at his private interest only but also keep into consideration the other contracting party. If this party has not enough means to support the contractual risks the agreement should not be concluded. If this party suffered damage for an unexpected negative circumstance the other should assist him. It is the Christian conscience, informed by the Gospel, who must take this decision.

Privacy and Loving the Neighbor. Private Property according to Early Modern Lutheran Theologians

My book, Lutheran Theology and Contract Law in Early Modern Germany has been published by Brill in 2019. As the title suggests, it is about the contract law teachings shaped by Lutheran theologians and jurists. The involvement of the theologians with contract law issues might sound weird today, as our secular society is founded on a strong separation between religion and law. However, medieval and early modern society was deeply religious and the salvation of the soul was a crucial problem for every person. Sins could lead to eternal damnation. They had to be confessed at least once a year to the parish priest and punishment should be inflicted. For centuries, in the Catholic Church, priests were trained to guide the Christians in their fight against sins and to determine the right penance. They were also concerned with the moral aspects of legal obligations, including property law and contract law. Fraud in business, illicit appropriation of a thing, and the charging of interest in loans were all sins. The Christian should be instructed on how to avoid these sins and counseled in the solution of the moral dilemmas. The most eminent theologians wrote a multitude of penitential books destined to the education of confessors and penitents. These books also included long discussions about property and contract law problems.


Although in a different way, the Lutheran theologians followed the path prepared by the Catholics. Martin Luther (1483-1546), Philipp Melanchthon (1497-1560), Johannes Brenz (1499-1570), Johannes Aepinus (1499-1553), Martin Chemnitz (1522-1586), Johann Gerhard (1582-1637) and many other outstanding theologians wrote sermons, moral treatises and other specific works dedicated to the education of pastors and believers. The word privacy was not mentioned in these works. However, the theologians dealt with the ´private´ and more in specific with the right of private property, private contractual autonomy, and private business. In this post, I would like to focus on the right of property according to the early modern Lutheran theologians. The narrative will be rather stylized, but the reader who wants to have more detailed information can have a look at my book.


Privacy is not included in the concept of private property but it can presuppose the right of property. Today, people might take for granted the exclusive ownership of a thing (e.g. house) but this does not hold true in the medieval and early modern period. Private property was indeed a contested right. For example, we can think about the medieval disputes triggered by the Franciscans and other mendicant orders who fought to defend their right to renounce to property and live in a state of voluntary poverty.
In the early modern period, a Protestant sect called Anabaptism aired the view that private property should be forbidden. According to the Bible, the Anabaptists said, Christians should have everything in common and business activities should be prohibited. They appealed to numerous biblical passages like for instance Mark 10:21, sell your goods and give to the poor, and thou shalt have treasure in Heaven or invoked the evangelical spirit of the first Christian community where all things were held in common. This movement spread throughout Europe but was rejected by the main confessions (Calvinists, Lutherans and Roman Catholics) because it was considered to be too radical.


The Lutherans opposed the Anabaptists’ position on communal property advocating instead a conception of private property aimed at considering the needs of the neighbor. Private property, they argued, is a divine institution commanded by the Scriptures. The seventh commandment of the Decalogue, you shall not steal, was employed as the main argument for the defense of private property. The Decalogue was a crucial element of the Lutheran moral system. It was understood as the summary of the divine law, the existential catalog of the Christian duties. Luther and the other reformers maintained that by forbidding the stealing of goods God clearly instituted private property and determined its use.


The law of God, therefore, does not command that properties must be in common but sets out that private property is a divine institution and must be used according to charity. The aim of property is not an egoistic enjoyment but the support of the neighbor. For the Lutherans, this support could be given in two ways: by exchanging goods or by giving alms. Contracts were conceived as instruments to exchange goods in order to benefit the neighbor. For example, the reformers claimed that if one of the parties has goods but no money, he could make a contract of sale with another party. If a party does not have enough money to buy a house and the other party does not need it they can make a lease. If one of the parties is deprived of goods then the other party could help him by almsgiving. When the neighbor needs help he should be sustained by a correct contractual exchange and almsgiving.
This compromise solution allowed the Lutherans to defend private property and safeguard the correspondence with the biblical dictates. They considered faith and charity as core rules for private property. Faith allows men to recognize that private property is a divine institution. The owner of goods has to thank God for his goods or ask Him when they are needed. Charity is the fundamental rule to use the goods. The Christian has to revolve attention on the needs of the neighbor. This could be done by a sale, lease or another contract always considering the needs of both parties so that they both can be satisfied. The right to private property is not given for self-wellbeing but to meet the neighbor’s needs.
I conclude with a speculation on the notion of private that could be carved out from this discussion on the right to property. For the early modern Lutheran theologians, the private was not seen in an individualistic and absolutistic sense, but in connection with God and the neighbor. The Lutherans defended private property, but as an instrument to practice the virtues of faith and charity. Consequently, the rules on the property of goods are not absolute but flexible. They do not guarantee the right to possess goods for the personal satisfaction of the owner so that he could claim his unlimited right to the private. Rather, they guarantee the moral lawfulness of owing goods as long as the neighbor does not need help. When the neighbor knocks on my door, my private goods shall be used to help him. It is, therefore, a softened and flexible notion of private, which does not imply complete isolation from the other but rather a certain opening. The moral norms devised by the Lutheran theologians appeal to the Christian and command him to host the neighbor into his private space when this is necessary.