Unconscionability Part 2

(Part 1 here.)

To sustain interest I'll collapse my summary of the next three parts of Unconscionability: Reciprocity and Justice (download here) into a single post: Aristotle to Justinian to the scholastic synthesis in seven paragraphs.

If, as I argued, contract law is absent from the Hebrew Scriptures yet those same scriptures frame the social practice of contracting in light of two virtues--fidelity and fairness--we pick up the path of the legal tradition of unconscionability with Aristotle's analysis of commutative justice. Justice for Aristotle was still a virtue and not (necessarily) a matter of law. Given the social nature of human beings, the virtue of justice entailed not taking anything from another person involuntarily. A virtuous person would of course not steal but neither would such a person engage in an otherwise voluntary transaction that was imbalanced. Why such a big deal? Because

political community can exist only when there is exchange among its members. Exchange, however, would be stifled without some assurance of reciprocity. Equality in exchange is thus foundational to social life and injustice—inequality in exchange, a failure of reciprocity—threatens the fabric of society.

Nice sounding, perhaps, but since when has virtue been the foundation of law? Well, as we shall see, until relatively recently law and virtue have been conceived in meaningful relationship to each other.

We have to wait another 800 years to see the law--the Code of Justinian in 534--pick up the notion of commutative justice and make it an express part of the law, at this time the law of the Eastern Roman (Byzantine) Empire. Or at least so it seems because the Code provides an example of a particularly unbalanced transaction that could be set aside: "Code 4.44.2 provided a remedy for certain sellers of land who received less than half the value of property sold. The seriously shortchanged seller could rescind the transaction (and return the purchase price) unless the buyer paid the full value of the property."

Where Justinian's codifiers really got this idea is opaque and what Roman judges actually did with it is unknown. In fact, Justinian's Code wasn't even "law" in the vast swaths of Western Europe that were no longer under Roman (Byzantine) control. So how can an unenforced law from another jurisdiction help account for unconscionability?

Fast-forward another 500+ years to the turn of the 11th century when three or so factors came together. What happened in about the year 1080 in Bologna, Italy? Combine the creation of the first university in Western Christendom and the rediscovery of the Code of Justinian and you get a new course of study--law--with a place to study it. And how would it be studied? With the analytic framework provided by Aristotle millennia before:

In 1080, long after the collapse of the Roman Empire in Western Europe, scholars at the University of Bologna rediscovered the complete text of the Corpus iuris civilis. With this “new” text, the study of law first became part of the curriculum in a Western university. The rediscovered Corpus iuris civilis, the Scriptures, and the works of Aristotle together formed the foundation of the new field of legal science.

Standing alone, this medieval legal science would be no more than an antiquarian interest. Except that over the next two centuries the insights and conclusions of this new legal science became the law. And what was this law as it pertained to unconscionability?

Early scholastic jurists applied Aristotle’s dialectic method to synthesize Roman law—including Code 4.44.2—at a high level of abstraction and then applied the result to contemporary situations. At a very early date they extended the logic of Code 4.44.2 “to sellers as well as buyers and to parties to analogous contracts.” The expanded remedy for unbalanced transactions is still known by its Latin name—laesio enormis—in countries in the civil law tradition. More importantly, what began as an object of academic study eventually became reality as over the succeeding centuries large parts of Western law became rationalized in Roman law terms.

In other words, by 1200 the law of contracts throughout much of Western Europe (but not England!) had a straightforward doctrine of unconscionability: a sale for more than double (or less than half) the market price demonstrated not only a lack of virtue, it was a legal wrong giving rise to a legal remedy.

But what happened over, say, the following 400 years? Did unconscionability survive the changes wrought by the growing market economies of Western Europe? The Reformation? And what about England with its common law? Stay tuned.