6 April 2020

Contracting in the Wake of Contagion

In 'The Silence of the Girls' by Pat Barker, which retells the Iliad from a woman's point of view, a priest of Apollo invokes the god when the Greek Agamemnon refuses to return his daughter to him. Apollo, as the Greeks seem to have forgotten in the moment, is the mouse God. Not long after, plague strikes their camp outside the walls of Troy.

This is, of course, not the first time that Agamemnon, who comes across as being a thoroughly unpleasant person determined to impose his will on those he thinks he can dominate instead of negotiating agreements with them, has foolishly wrangled with women. He has sacrificed his daughter Iphigenia to be able to reach Troy in the first place and her mother, Clytemnestra, has sworn vengeance which she will get although Agamemnon does not yet know it. Their story has been memorably reimagined in 'The House of Names' by Colm Tóibín.

Agamemnon is now more myth than man if ever he existed, and his tale is being told in the voices of the women he encountered over a millennium after they may have lived. Although there almost certainly would have been earlier retellings, it is unarguable that it is not easy for women's voices to be heard.

Our histories have long been incomplete: they have told tales of the past through the eyes of men, usually those men who have managed to suppress others. Women have often been incidental to their tales: they appear as props or trophies, rarely people in their own right.

Plague and war may strike everyone in their path but to call them equalisers simply because they do not respect class, communal, or gender divides is misleading. Where there is inequality, they exacerbate it simply because they put into sharp relief the differing abilities of various groups of people to survive them. Where resources and support structures differ, where discrimination exists, survival rates cannot be the same.

Human nature, however, seems to have remained the same, largely unchanged through time. In his history of wars in the Hellenic world fought a few centuries before the birth of Christ, the Athenian general Thucydides, who was careful to mark himself out as a historian, writes of the effect of war on domestic strife and of the plague. Although we may now think more in terms of contagion, civil unrest and gender equality — consent in the sheets, dissent in the streets, as it's now sometimes put — and balk at the thought of the wars of the ancients being replayed, much that Thucydides has to say sounds remarkably familiar. Translating his history of the Peloponnesian War in the nineteenth century, Richard Crawley wrote, and it is perhaps worth reading at least some of his words on the subject without the crutch of paraphrase:

[... OF STRIFE]

"Words had to change their ordinary meaning and to take that which was now given them. Reckless audacity came to be considered the courage of a loyal ally; prudent hesitation, specious cowardice; moderation was held to be a cloak for unmanliness; ability to see all sides of a question, inaptness to act on any. Frantic violence became the attribute of manliness; cautious plotting, a justifiable means of self-defence. The advocate of extreme measures was always trustworthy; his opponent a man to be suspected. To succeed in a plot was to have a shrewd head, to divine a plot a still shrewder; but to try to provide against having to do either was to break up your party and to be afraid of your adversaries. In fine, to forestall an intending criminal, or to suggest the idea of a crime where it was wanting, was equally commended until even blood became a weaker tie than party, from the superior readiness of those united by the latter to dare everything without reserve; for such associations had not in view the blessings derivable from established institutions but were formed by ambition for their overthrow; and the confidence of their members in each other rested less on any religious sanction than upon complicity in crime. The fair proposals of an adversary were met with jealous precautions by the stronger of the two, and not with a generous confidence. Revenge also was held of more account than self-preservation."

[... OF PLAGUE]

"Men now coolly ventured on what they had formerly done in a corner, and not just as they pleased, seeing the rapid transitions produced by persons in prosperity suddenly dying and those who before had nothing succeeding to their property. So they resolved to spend quickly and enjoy themselves, regarding their lives and riches as alike things of a day. Perseverance in what men called honour was popular with none, it was so uncertain whether they would be spared to attain the object; but it was settled that present enjoyment, and all that contributed to it, was both honourable and useful. Fear of gods or law of man there was none to restrain them. As for the first, they judged it to be just the same whether they worshipped them or not, as they saw all alike perishing; and for the last, no one expected to live to be brought to trial for his offences, but each felt that a far severer sentence had been already passed upon them all and hung ever over their heads, and before this fell it was only reasonable to enjoy life a little."

Men unleashing their baser natures, as plague and war are wont to tempt them to do, are not admirable in Thucydides' narration. The meanings of words become unstable, fair phrases camouflage evil, only the expedient is valuable, factionalism is rife and overrides both blood ties and honour, and, in their desperation to prove themselves, men take to conduct more and more extreme, and less and less well thought out. Whether in times of strife or in times of plague, men's aim is merely to make the most of the moment regardless of honour or solidarity. Their own immediate needs take precedence, those of others are relegated to nothingness, an acknowledgement which may have foreseen the selfishness of unbridled capitalism let loose in crisis.

Richard Crawley was not the first to translate Thucydides' work. On the contrary, he was one of a reasonably long line. Centuries before him, Thomas Hobbes had also done so, and it is probably no accident that Hobbes came to think so little of men's natures when they were not reined in. Hobbes' solution to the problems caused by extreme situations was to develop in the social contract a middle ground: he had men give up some of their freedom (to wreak havoc) for the greater good which benefited themselves too. His solution was, even though imagined, an exemplar of the consent theory of contract on a macro scale.

There is enchantment in drafting contracts from scratch: it is, in many ways, akin to creating a world fenced in though it is by immutable facts and existing laws; none of us are exempt from nature's laws even if we derogate from human law. And in the creation of new worlds, we cannot escape the fact that the emergence of instability in existing ones provides the opportunity to envisage ways of life afresh.

We have learnt that capitalism can fail us and, in times of crisis, many of us have been lucky enough to see the welfare state kick into action as contagion spreads. Whether we allow capitalism to triumph over all else in a post-crisis world is a choice we will have to make, one which we will have the opportunity to make given that, ultimately, capitalism tends to be self-destructive and cannot sustain itself in stressful times without being propped up by the collective.

Few of us can make grand gestures but we often can negotiate fairness in our own dealings especially when the ground we stand on is unstable and the powerful, like everyone else, are unsure of how the future will unfold. "Be kind" is a suggestion; we could cumulatively make it a legal obligation based on standard practice. After all, we've found some alternatives to the harshness of the world in acts of individual and social solidarity even though we've rarely (yet) indelibly laid them down black and white. A crisis gives us options in its aftermath: once it is over, we can return to business as normal. Or opt for a kinder world.

We know nothing of history but what its detritus has left us, and chronologies are often unclear. Still, what we do know with reasonable certainty is that the crises of the past have been followed by substantial social and legal change, some to resurrect pre-crisis environments and others to radically change those environments, to strengthen inherent power or to diffuse it. And such changes have often been wrought by contract.

We are not facing the plague but allusions to it insofar as parallels to the legal effects of generalised contagion extend are arguably not inapposite. There have been notable pandemics in history: the plague of late antiquity which hit the Eastern Roman Empire, the Black Death of the middle ages which travelled along the silk road and decimated the population of Europe, and the plague of the nineteenth century which affected India and other parts of Asia. Known timelines do not support the thesis that a mention of the effect of supervening events on contracts in Justinian's Digest followed the outbreak of plague although the Digest does seem to have been compiled after a military campaign which could well have seen some form of contagion spread.

Contemporary sources do not seem to tell us of the rationale which underlay the legal changes of the Middle Ages either, and there is always the fear of subscribing to the fallacy: post hoc ergo propter hoc, after this, therefore because of this. Nonetheless, we do know that there were substantial changes to English law and society around the time of the Black Death: the Statute of Labourers and the development of the writ of assumpsit coupled with penal and performance bonds which parties agreed to likely controlled prices, held individuals to their commitments, and created certainty of liability in cases where debts were not honoured. Together, they also presaged the end of feudalism and the emergence of a society in which relations tended to be guided more by consent and promises of money than by fealty and promises of protection.

Closer to our own time, in a way it was plague that helped bring about the end of the British Empire. The enforcement of the 1897 Epidemics Act which was meant to contain plague was not well received by Indians at all not least because it tended towards the brutish. The statesman, Bal Gangadhar Tilak, wrote in his newspaper Kesari of myth and of the historical killing of Afzal Khan by the Maratha warrior Chatrapati Shivaji who had defeated the Mughals at their strongest to create the Maratha Kingdom. The British saw analogies to themselves in his writing and, although no causal link was ever demonstrated between the two, soon after the publication of the pieces, Pune's plague commissioner was killed.

Tilak was convicted of sedition, and the men who killed the plague commissioner were hanged. Despite having come down with a heavy hand on dissent, the British were forced to reassess their methods and come to an agreement with Indians on how to go about containing the plague. This was a microcosm of government by consent, and it is not for nothing that it is said that this is the period that marked the beginning of the end of the British Empire in India.

Consent is not a perfect tool to ascertain the legitimacy of contract either between citizen and state, or between citizens inter se. It is always susceptible to being contaminated by choice inhibition, impossibility, mistakes of facts and law, and undue influence, some of which factors contract law takes into consideration albeit in an inadequate manner. Still, the substratum of contract law is equity, and it is perhaps worth building on that foundation so that contract law itself, in its whole, comes to respect not just manifest consent but also takes into consideration the totality of circumstances in which consent is obtained so as to help build fairer, kinder world for all of us. History is on our side.

(This post is by Nandita Saikia and was first published at IN Content Law. Some of the ideas in it were earlier explored on Twitter @nsaikia.)