A Biblical Dichotomy in Law

-- By ArgiriosNickas - 18 Feb 2016

The Dichotomy

"No one can serve two masters. Either you will hate the one and love the other, or you will be devoted to the one and despise the other. You cannot serve both God and money.” Matthew 6:24, New International Version. While there is always a formalistic hesitation to question the authority of stare decisis, even the most revered texts must sometimes come under fire. There is no more fitting a place to raise questions for a class titled “Law and Contemporary Society” then in the book that gave us the first recorded legal decision.

If scholars can seek new meaning and justification in the most revered text, then everything else must also be subject to revision. The dichotomy presented in Matthew 6:24 is a foundation from which to begin exploring the law and the ends it should serve.

Money

First, we must attempt to define the dichotomy. Money is defined as “something generally accepted as a medium of exchange, a measure of value, or a means of payment.” Merriam-Webster, ‘money’. Though seemingly fluid, that definition is stagnant: though the things money can be legally exchanged for vary over time and place, its purpose does not. A functional query always leaves us in the same place: if money is used in exchanges for goods and services, then the goods and services themselves define money.

God

The other part of the duality is, admittedly, more complicated. Our initial dictionary inquiry provides us with this: “the perfect and all-power spirit or being that is worshipped especially by Christians, Jews, and Muslims as the one who created and rules the universe.” Merriam-Webster, ‘God’. There is a striking problem here: if this were placed in the preceding paragraph it would be no less fitting. Would the Bible draw a dichotomy where none exists? More likely, the definition of this half has faded, as worship attendance and the importance of religion have declined, most notably along generational lines. 2014 Religious Landscape Study, Pew Research. Since a functional approach will get us everywhere and nowhere, perhaps we should adopt an originalist perspective to biblical interpretation and let Him define Himself: “And so we know and rely on the love God has for us. God is love. Whoever lives in love lives in God, and God in him.” 1 John 4:16, New International Version. The quote gives no context or vector to that love, but a further reading of the New Testament assures that it applies to our fellow man: “Love your neighbor as yourself.” Matthew 22:39, New International Version.

The dichotomy that materializes is a love of things (money) contrasted by a love of others (God). While that line has not always been clear, and while sometimes the two synthesize, the question remains: where in this dichotomy is the law and where should it go?

Application to Charitable Subscriptions

An area of law apt for reexamination is the enforceability of donative promises, particularly charitable subscriptions. Kirksey v. Kirksey, 8 Ala. 131 (Holding that donative promises are generally unenforceable). In Mount Sinai Hospital Of Greater Miami, Inc. v. Jordan, 290 So.2d 484 (Fla. 1974), the court held that a pledge made “in consideration of and to induce the subscriptions of others,” but for which no specific purpose was identified, was unenforceable. The court, limited by a formalistic approach to consideration, reached a decision that fell squarely on the ‘money’ portion of our dichotomy, emphasizing the defendant’s self-interest over a collective societal need. Though the justification for donating varies (ranging from purely altruistic to purely selfish motivations), what does not is that giving behavior is broadly beneficial and deeply effected by social influences. Grace Carman, Social Influences and the Private Provision of Public Goods: Evidence from Charitable Contributions in the Workplace, 2014 (Giving encourages more giving). If we value charitable giving, framed as a moral obligation to others, the law should reflect that through (1) enforcing charitable obligations or (2) providing charities with the formal mechanisms to make promises binding in their non-bargaining (and therefore consideration-scant) environment.

Solution 1: Switch of Presumption

Salsbury v. Northwestern Bell Tel. Co., 221 N.W.2d 609 (Iowa 1974), is an example of the first solution. In enforcing a written promise by the defendant to donate $15,000 to a newly formed college, the court cited public interest rationales as its justification for dismissing concerns of consideration and detrimental reliance, expressly adopting § 90(2) of the Restatement (Second) of Contracts. Since, most courts have not adopted any variation of the Restatement provision, and few have gone as far as the Salsbury court. For example, in Congregation Kadimah Toras-Moshe v. DeLeo? , 540 N.E.2d 691 (Mass.1989), the court declined to enforce an oral pledge. They stated that there was neither consideration, in the traditional ‘benefit/detriment’ sense, nor proof of reliance.

The law cannot rest on equitable estoppel because the mere addition of a donation to a written budget, which is as far as many charities will go until money is received, is not sufficient for a finding of detrimental reliance. An equitable solution might be to flip the Restatement provision on its head for charitable subscriptions: instead of “injustice” done to the promisee charity by nonperformance (Restatement (Second) of Contracts, § 90), the court should consider injustice on the promisor, i.e. a presumption of validity unless the promisor would be left inequitably harmed by enforcement, therefore emphasizing the group over the individual.

Solution 2: Formal Mechanism

The alternate solution is a formal mechanism to ensure contract validity. While few states have enacted devices that revive the function of a formal seal, such an instrument, limited in availability to registered charitable organizations, if adopted, would provide the same result as the most expansive reading of § 90(2).

While this analysis of charitable promises is brief, ignoring potential activity level effects and assuming that frequency of non-enforcement presents a need for redress, the biblical dichotomy of money and God can nevertheless serve as an analytical tool for examining and reforming doctrine.

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