Dismembered Goats as a Key to Understanding Contract Law
As a fellow contracts geek recently pointed out to me, I am obsessed with finding strange new contractual rituals. Of late, I have been collecting stories about dismembered animals. The fifteenth chapter of Genesis in the Bible, for example, records what must surely count as one of the most famous contracts in history. Abram (who will be renamed Abraham later in the story) has left his homeland in Ur and come to the land of Canaan. After defeating a coalition of local kings who had captured his brother-in-law, Abram has a vision in which God promises the childless patriarch that his decedents will outnumber the stars of heaven and that he will inherit the land of Canaan. The skeptical Abram then asks, “O Lord God, how am I to know that I shall possess it?” The text goes on:
[God] said to him, “Bring me a heifer three years old, a she-goat three years old, a ram three years old, a turtledove, and a young pigeon.” And he brought him all these, cut them in two, and leach half over against the other; but he did not cut the birds in two.
It is, to modern ears, a very strange story. Abram doubts God’s promise, but his doubts are allayed when God instructs him to dismember three animals and then lay the bits of the carcasses against one another. Why does the bloody ritual with the mutilated animals convince Abram that God’s promise is meant seriously? While the answer is obscure to us, it would have been immediately apparent to an ancient reader. God’s response to Abram transforms his promise into a legal covenant by invoking the formality that by which such covenants were created in the ancient world.
The slaughter of the heifer and the she-goat was an enacted penalty clause. In effect, the parties to a covenant agreed that in the event that they failed to fulfill their part of the bargain they should be treated in the same manner as the dismembered animals. Indeed, in Biblical Hebrew one does not “make a covenant” rather the phrase often translated that way in English editions of the Bible could be more literally rendered as to “cut a covenant.” The formality of killing an animal to seal a deal was widespread in the ancient world, showing up in Babylonian treaties and the agreement dividing Alexander the Great’s empire upon his death, where his generals hacked up a dog. In part the ritual invoked the punishment of the gods (an ironic position for the militantly monotheistic Yahweh to take in Genesis 15), but it also may have been embedded in a system of self-help. The relationship is nicely captured in Book III of The Iliad when Priam, King of Troy, and Agamemnon, leader of the besieging Acheans, agree to end their war through single combat between a champion from either side, and formalize the agreement by slitting the throats of a brace of sheep and pouring their blood, along with wine, on to the ground as a libation to the gods. The Trojans and Acheans then join in a prayer:
Most powerful, mighty Zeus, and you others,
you immortal gods, may you make sure
the men who first violate these oaths
will have their brains spill out onto the ground,
just like this wine, they and their children.
May their wives be carried off by other men.
Notice, the prayer invokes not only the wrath of the gods, but also suggests the legitimacy of violence against oath breakers. In an anarchic world of feuding tribes this ex ante authorization would have been particularly important, because it would allow a disappointed promisee to exact vengeance on a promisor without fear of retaliation by members of the promisor’s tribe.
All of this sounds very quaint and barbaric, of course, but of late I have been reading Benjamin Zipursky’s work on civil recourse theory. I suspect that we are closer to the goat-hackers than we suppose. One of the striking features of private law is that nothing happens unless a wronged party sues. If A breaches a contract to B, A may have liability to B but there is no independent legal duty to tender damages. Contrast this, for example, with tax liability, where one can be judged to not only owe the government money but can also be punished civilly or criminally for failing to tender payment of the debt. I am increasingly convinced that there is a very real sense in which the law doesn’t enforce contracts at all. It simply provides plaintiffs with an orderly and controlled way of attacking plaintiffs. This is essentially what the Acheans and the Trojans did with their covenant before the high walls of windy Ilium. They made a bargain and in doing so authorized a kind of limited attack in the event of breach. The main difference between them and us is the nature of the limits placed on the right of attack. At the end of the day, however, I suspect that we are all just cutting up goats.