I have been working on this post for a while, and I have finally given up (for the time being) on trying to make my thoughts more coherent. So be warned, what follows involves some rather rambling discussions of legal theory and legal history. I disclaim any warranties explicit or implied. Read at your own risk. Void where prohibited.
One of my main academic interests is contract law and contract theory. As a result, I am fascinated by the theological idea of “covenant.” Generally, when people talk about “covenant” and “contract,” they distinguish them by saying that “covenants” involve spiritual things, while contracts are merely commercial transactions. They then go on to describe a covenant as a set of recipricol promises. We promise X and in return God promises Y. I tend to think that this whole approach to the question is wrong.
A bit of legal theory to start with: Sir Henry Sumner Maine was a 19th century legal historian and is also often thought of as one of the founders of anthropology. Maine wrote in an era in which historians offered big, sweeping meta-theories of historical change. Today’s historians are less ambitious (or perhaps simply less fool hardy), but one of Maine’s theories is very useful for thinking about covenant. According to Maine, the progress of the law has been from status to contract.
By status, what Maine meant was a set of legal obligations that are tied to particular social positions and are not open to variance by the parties. For example, lord, vassal, heir, husband, wife, parent, child, tenant, debtor, creditor, bishop, cardinal, senator, knight, plebe, patrician, etc. are all examples of status. By contract, Maine meant something like a set of legal obligations that are defined by the agreement of the parties and are variable according to their will and agreement. For example, the complex set of rules that govern your use of a credit card are an example of a contract. There is no inherent, off-the-rack concept of “credit card holder” that defines your rights and obligations, and if you read the fine print of various agreements, you will notice that the rights and obligations can vary considerably from card to card.
Maine’s simple story of progression from status to contract, like most of the 19th century stories of progress, has been largely abandoned as untenable. However, one striking thing is the very late emergence of the idea of contract. For example, the idea of reciprocal binding promises did not emerge in our law until the 19th century, and it remained doubtful as late as the turn of the 20th century. With the exception of the Romans (who had a remarkably flexible form called the stipulatio), ancient societies do not seem to have had much of any concept of contract. Thus, when we read about something like the covenant between God and Abraham, it is anachronistic in the extreme to think about it as a contract.
So what was it? Well, it was a status. Generally, in the ancient world long term voluntary obligations were created through status. For example, if I wanted to make a treaty with the neighboring chieftain, we would not exchange promise. Rather, we would create some status relationship between us, generally via adoption (I might become his son) or marriage. A closely related kind of status was that between an overlord and a vassal. This generally created reciprocal obligations of protection and obedience. If you look at the covenant between God and Israel, it basically mirrors this relationship.
In part, our word “covenant” traces this distinction between status and contract. In its original legal sense, a covenant was a promise made under seal. This sounds much like a contract, ie a voluntary obligation whose contours are defined by the will of the party. However, it didn’t actually work this way. Covenants generally took the form of a promise to pay money. This promise created a status relationship, since the promisor became the debtor or the promisee became a creditor. This relationship gave rise to a host of obligations that were unrelated to the content of the parties agreement. It wasn’t until much later that covenants began to take the form of contracts, this development was eventually completely cut off by a decision known as Slade’s Case, which required the common law to begin again the groping toward some concept of contract.
There is some language in modern revelation that sounds like contract – e.g. “I the Lord am bound when you do what I say, but when you do not what I say, you have no promise” – but by and large, covenant continues to be a status relationship. For example, if you look at section 84, the “Oath and Covenant of the Priesthood,” the promises of the Lord are not defined as free standing obligations. Rather, he notes that those who accept and magnify his priesthood become his heirs and sons. Indeed, if you look at the language used in scripture and in the temple to define the duties and rights of our covenants with the Lord, three or four images constantly reappear. First, there is the image of children; we become sons and daughters of God. A variation on this is the idea that we become adopted into the House of Israel. Second, there is the image of heirs; God promises that we will inherit all that he has. Third, there is the image of priests and priestesses. Finally, there is the image of kings and queens unto God. I take the phrase “unto God” to mean something like we become lesser kings owing fealty to a higher (perhaps High) king.
So what does all of this logic chopping illustrate. Maine’s notion of contract is tied to a particular vision of society and of persons. In contracts, the identity of the contractors is more or less irrelevant. Each is thought of as an autonomous and self-defining agent. Society is seen as the totality of the individual contracts of these autonomous agents. The pattern of society is emergent and is secondary to the decisions of individuals. The logic of status is quite different. It assumes that people are inherently related to one another. Who we are is in large part defined by what status we have vis-a-vis others. It denies that these relationships are a matter of self-definition or choice. Rather, there is a pattern of society and the pattern is logically prior to the individuals that inhabit it.
Covenant as status, rather than contract, thus implies an integrated divine economy. It is one that is beyond our ability to create or alter. Furthermore, within the divine economy we are inherently related. To reject the economy means that one is without status, in a sense without meaning. Furthermore, this is a vision of the divine economy that would be radically altered if covenants are reconceptualizd as contracts.