Textual Augustinianism

The New Digest is delighted to present a guest essay by Aníbal Sabater, a regular contributor to our pages and a leading commentator on classical legal themes. Mr. Sabater is a lawyer in New York specialized in international arbitration.

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“Textualism” comes in different shades. There is of course the textualism that holds that the judge must apply the written text according to the ordinary meaning of its words and without considering any sources outside the “four corners.” In its most extreme form, this textualism denies the existence of non-written law altogether.

But there is also a textualism that holds that, when the purpose, meaning, or intent of a legal text (whether a contract or a statute) is in dispute, the interpreter must begin with the text itself, yet turn to other sources when the text is unavailing—for instance, because it is ambiguous or unconscionable. This brand of textualism (which Justice Elena Kagan probably had in mind when she famously quipped “we are all textualists now”) was the distinct contribution of canon lawyers to legal theory and owes much to the influence of Augustine.

In fact, with respect to statutes and edicts, the Roman lawyers of the Digest —Ulpian, Papinian, Paul, Gaius— were already unwitting Kagan-esque textualists. Their writings often are just a parsing of the texts to find out their meaning and apply them correctly.

Roman contract law, however, operated through a system that was, in a sense, proto-textual. The praetor’s edict defined which agreements the law would recognize and protect through actions (actiones). If the arrangement fell within a recognized category and the prescribed words were used, the creditor would have an action. Otherwise, he did not, irrespective of how clearly worded the agreement was. Accordingly, the first question was not “what do these words mean?” but rather “does this transaction have a legal home at all?”

If a contract was found to be innominate —that is, if it used a formula not expressly foreseen in the edict— then the general rule was that it was not actionable: “ex nudo pacto non oritur actio—”from a bare agreement, no action arises”. Exceptions were occasionally allowed.

Even within the recognized contracts, Roman jurists were not word-analysts. The great distinction for them was between contracts of strict law (stricti iuris) —paramount among them the stipulatio— and those of good faith (bonae fidei).

In a stipulatio, the formal oral exchange (“Do you solemnly promise? I solemnly promise”) formed the basis of the contract, and in case of doubt the jurists would engage in something closer to textual analysis.

But in bonae fidei contracts —emptio venditio, locatio conductio, mandatum— the judge was explicitly authorized to consider what good faith required between the parties, even at the expense of the words themselves. The primary question was what a good, honorable man would understand himself to be bound to, not what an analysis of the text would yield.

Accordingly, in the case of bonae fidei contracts, which were often the most economically significant, the Romans were contextualists rather than textualists.

The system ultimately converged on two general rules. First, “fides” (trust, faithfulness, goodwill) required that contracts be fulfilled so long as the right words had been employed: “fundamentum autem est iustitiae fides, id est dictorum conventorumque constantia et veritas” (”the foundation of justice is fides, that is, steadfastness and truthfulness in words and agreements”) (Cicero, De Officiis I.23).

Second, the mark of a good judge was being able to identify what good faith exacted from each party in a contested contract:

“Nam quanti verba illa: uti ne propter te fidemve tuam captus fraudatusve sim! quam illa aurea: ut inter bonos bene agier oportet et sine fraudatione! Sed, qui sint ‘boni,’ et quid sit ‘bene agi,’ magna quaestio est. Q. quidem Scaevola, pontifex maximus, summam vim esse dicebat in omnibus iis arbitriis, in quibus adderetur ex fide bona, fideique bonae nomen existimabat manare latissime, idque versari in tutelis societatibus, fiduciis mandatis, rebus emptis venditis, conductis locatis, quibus vitae societas contineretur; in iis magni esse iudicis statuere, praesertim cum in plerisque essent iudicia contraria, quid quemque cuique praestare oporteret.”

“How much weight attaches to those words: ‘that I not be deceived or defrauded through you or your good faith’! And how golden that clause: ‘that between good men dealings should be conducted as between good men must be, and without fraud’! But who are ‘good men,’ and what it means to ‘deal as good men must’ — that is a great question. Q. Scaevola, the pontifex maximus, used to say that the greatest force lay in all those proceedings to which the formula ex fide bona was added; and he held that the name of good faith spread very wide indeed, covering guardianships, partnerships, trusts, mandates, sales, purchases, lettings, hirings — in short, all the transactions by which the life of society is maintained. In these, he said, it required a judge of great ability to decide the extent of each individual’s obligation to the other, especially when counter-claims were admissible in most cases.

(Cicero, De Officiis III.70.)

At least initially, medieval civil law jurists continued to operate under these Roman principles, but canon lawyers questioned them and eventually developed a different system altogether that would be adopted also in civil matters. In canon law, the old Roman “ex nudo pacto non oritur actio” became the now ubiquitous “pacta sunt servanda” (agreements must be kept) and words (rather than social or ethical expectations) were the first criterion to determine the existence and scope of the parties’ obligations.

These changes are explained in part by the fact that canon lawyers extracted further consequences from the old Roman emphasis on fides—trust requires that a party be held to what it agreed even if it failed to use the legally prescribed words. But ultimately the change had a deep theological foundation in Augustine’s writings.

Augustine was not a jurist, yet his influence, especially the influence of his theory on signs, was pervasive. For Augustine, every sign must signify something:

“Ex quo intellegitur quid appellem signa: res eas videlicet quae ad significandum aliquid adhibentur. Quam ob rem omne signum etiam res aliqua est; quod enim nulla res est, omnino nihil est.”

“Hence it is understood what I call signs: those things, namely, which are used to signify something. Therefore every sign is also a thing; for what is no thing at all is nothing at all.”

“Signum est enim res, praeter speciem quam ingerit sensibus, aliud aliquid ex se faciens in cogitationem venire.”

“A sign is a thing which, beyond the impression it produces on the senses, causes something else to come to mind.”

(Aug., De doctr. christ. I.2.2, II.1.1.)

And, of course, words are the most important type of sign—one that only God and men can use. On this approach, lying entails a voluntary rupture between sign (words) and reality:

“Quapropter ille mentitur, qui aliud habet in animo, et aliud verbis vel quibuslibet significationibus enuntiat.“

“Therefore he lies who has one thing in his mind and expresses another by words or by whatever signs.”

(Aug., De mend. 3.3)

For Augustine, there is an ontological wrong when the outer sign and reality are not in accord, and there is a particular type of injustice that consists in exploiting the listener’s trust that the sign and reality will correspond, when in fact they do not or will not. (Aug., Contra mend. 10.24.)

It was on this basis that the canonists argued for the primacy of the text both in contractual and statutory disputes1 — a primacy that was never absolute. Like the whole Christian tradition, they recognized that any positive text receives its binding force from the eternal and natural law, of which it should be an extension. This is well known, though conveniently forgotten today by the strictest textualists, who enthrone the text without acknowledging the grounds —and the limits— of their doing so. Sidestepping the philosophical foundation of textualism not only favors its extreme versions; it weakens the case against certain forms of anti-textualism now running wild. Take Derridean deconstruction, which holds that no text is stable, but rather shifting and open to reinterpretation with each new case. Augustine warned against this danger, urging humility and emphasizing that the interpreter should follow the sign, rather than the other way around, because signs, especially words, must have a common meaning lest communication be made impossible. And he provided of course the example that Magnifica Humanitas has brought back to the fore: pride in human endeavors —including communication based on self-interest or disregard for the others— leads to the city of Babel and the failure of any effort to build the polis.

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