Pacta quantumcunque nuda servanda sunt. The pacta maxim, slightly altered, appears as an unofficial heading to the first chapter of the De pactis title of the Decretals of Gregory IX (Pacts, however naked, must be kept). (Decretales Gregorii P.IX 1.35.1 summarium, in 2 Corpus iuris canonici 203-04 (E. Friedberg ed.,1881).) The chapter incorporates the holding from a case brought at the Council of Carthage in 348 by Antigonus, a bishop of one of the North African bishoprics. (See Concilia Africae, A.345-A.525, in 149 Corpus Christianorum (Series Latina) 3, 9 (C. Munier ed., 1974).) Antigonus had agreed with Optantius, another bishop, to 416 divide their congregations. Optantius allegedly violated the agreement. Gratus, who was presiding, held that the breach violated Church discipline, the Scriptures, and the prevailing peace. The Council responded, apparently unanimously: Pax servetur, pacta custodiantur (Peace should be preserved, pacts should be respected).

The facts of the case from the Council report were excised when the holding was incorporated into the Decretals. The gloss recounted some of the particulars, but omitted the fact that the agreement between the two bishops seems to have been concluded with proper formalities - manus nostrae tenentur et pittacia (our signatures are binding as are the documents) (both the Latin text and the translation are uncertain). Moreover, because the heading was not present when the Decretals were initially promulgated, it has no legal force. Like the other summaria, it may have been taken from the decretalist literature and inserted by a 15th century editor. Though it is impossible to be certain, the source may have been the Cardinal Hostiensis, in whose Lectura the following sentence appears: Caveat ergo sibi is qui consentit, quia pacta, quantumcunque etiam nuda, secundum veritatem evangelii sunt servanda (Therefore care must be taken by whoever consents, because pacts, however naked, according to the Scriptures, must be kept). (Hostiensis, Lectura in quinque libros decretalium gregorianarum, I, de arbitris 9.6 (Venice 1581).)

It is often claimed that the pacta maxim originated with the canonists. The canonists did, in fact, reverse what they understood to be Roman formalism and held that an exchange of promises was sufficient to bind the parties. All that should count is consent - solus consensus obligat. Legal historians generally argue that the pacta maxim reflected this evolution. In the words of Paul Collinet: "It was left to canon law to take the final step of proclaiming the rule pacta sunt servanda which represents the triumph of the effect of the concurring wills." (Paul Collinet, "The Evolution of Contract as Illustrating the General Evolution of Roman Law," 48 L. Q. Rev. 488, 494 (1932).) René David explained the origin of the maxim as follows: "[P]acta sunt servanda: the law of contract should be relieved of rules with obscure origins, liberated from its connection to rites and magic, rendered autonomous in relation to the law of property. The validity of a contract should no longer depend either on a prescribed form or on the transfer of possession." (David, Les contrats en droit anglais para. 186.)

What is doubtlessly correct is that the canonists were instrumental in the evolution from formalism to consensualism and therefore contributed substantially to the modern law of contract. What is less certain is how the pacta maxim is connected to this process. Hostiensis - the cardinal-bishop of Ostia, who is also known as Henricus de Segusia and called variously in the literature Pater canonum et doctor supremus, fons et monarcha iuris, lumen lucidis simum Decretorum - played a central role in this development. (See generally Clarence Gallagher, Canon Law and the Christian Community 21-85 (1978).) He accepted as a general principle that, in canon law, a promise must be performed, even if formless: Vt modis Omnibus servetur etiam si sit nudum secundum canones . . . quia inter simplicem loquelam & iuramentum non facit Deus differentiam (In all cases a promise is to be performed, even if naked according to the canons . . . because God does not distinguish between simple words and an oath). (Hostiensis, Summa aurea, I, de pactis 6 (Quis sit effectus) (Venice 1570).) Moreover, whereas the legists recognized a nudum pactum only as an exception, the canon law provided it with an action: ex pacto nudo datur actio (An action may be based on a naked pact) (Lectura, I, de pactis 1.1); nos ex nudo pacto actione damus (We provide an action based on a naked pact) (Hostiensis, Summa aurea, I, de pactis 1.3). According to Hostiensis, the action on the simple agreement arises from natural equity, which the judge is to prefer whenever the positive law diverges from it. Equity requires that one's acts correspond to one's words. (See generally François Spies, De l'observation des simples conventions en droit canonique 54-63 (1928); Jules Roussier, Le Fondement de l'Obligation contractuelle dans le Droit classique de l'Eglise 20-29 (1933).)

Thus, in his chapters on pacts, Hostiensis fully accepted both the proposition that promisors are morally obligated to keep their promises and the idea that the law should follow the principles of moral equity. The pacta maxim so fully expresses these ideas that one might expect it to appear at this point in his text. Yet it does not. The reason may well be that Hostiensis had not yet discovered the general force of the principle. Whenever he employed the three words that make up the pacta maxim, either he qualified them or he appended them as an afterthought. For example, the Passage quoted above, which may have provided the source for the summarium in the Decretals, appears not in the chapter on pacts but rather in the chapter on witnesses. Moreover, it does not state a general rule but rather asserts a contradiction between the Scrip- 418 tures and Roman formalism (quantumcunque etiam nuda, secundum veritatem evangelii). The other uses Hostiensis made of the phrase are even more limited: semper pacta, novissima sunt servanda (The most recent agreements must always be respected) (Hostiensis, Lectura, I, de transactionibus 1.6); pacta inter partes habita servanda sint (Formal pacts among the Parties must be kept) (Hostiensis, Lectura, III, de prebendis & dignitatibus 11.7). Another indication that, for Hostiensis, the words had not yet attained the status of a general principle is that he employed them as frequently in the negative as in the positive: pactorum non liceret iudici immutare, illicita aut servanda non essent (Judges may not alter pacts, but illicit pacts need not be kept) (Id. 11.8); si pactum, conventum a re pribvata remotum sit, non est servandum (If the pact does not concern private matters, it is not to be enforced) (Hostiensis, Lectura, I, de transactionibus 8.6, quoting Digest 2.14.27.4).

Some explanation is needed for why Hostiensis, who did so much to ensure the triumph of consensualism, did not conceive of pacta sunt servanda as a fundamental principle and formulate it as a maxim. There seem to be at least two contributory factors. The first is that the canonist justification for consensualism was far broader than the pacta maxim. The canonists held that promises are binding on the promisor because, following the Augustinian critique of mendacity, they believed that a broken promise amounts to a lie: (See R. Naz, "Pacte," in 6 Dictionnaire de droit canonique 1181 (R. Naz ed., 1957).) Taken to its logical conclusion, this principle would require a finding that all promises are binding, even those that have not been accepted. The principle fails to explain why the law finds it especially compelling to enforce agreements. Whenever the justification for the pacta maxim is sought in traditional conceptions of morality, this difficulty reasserts itself. René Davids discussion again proves exemplary: "All commitments - at least those that their beneficiary has accepted - must be kept." (David, Les contrats en droit anglais para. 186.)

The second reason Hostiensis did not assert a greater degree of generality for the pacta maxim concerns the philosophy of science that informed his research. In this regard, his principal difficulty was that he wrote almost four centuries before Galileo. As is well known, Galileo produced not only a set of new and, at the time, astonishing ideas about the workings of nature, but also a radically new conception of how to construct a scientific theory. (See Hans Welzel, Naturrecht und materiale Gerechtigkeit 106 (4th ed. 1980).) 419 In his Discorsi, for example, Galileo sought to discover the trajectory of a shot fired from a cannon. (See Galileo Galilei, Dialogues Concerning Two New Sciences (H. Crew & A. de Salvio trans., 1914).) He concluded that the trajectory generally traces a parabola. To reach this result, he separated the movement into its elements, namely movement along a plane and a free fall. Galileo found that, for the purposes of the theory, distinctions must be made that are not empirically observable. In other words, science constitutes a series of abstract objects and provides each with its own theory. Empirical phenomena are understood as the product of the interaction of the different abstract elements.

Without this method of abstraction, general principles do not arise. Instead, there is simply the attempt to state a rule and its many exceptions in the same breath. For example, when commenting on the holding from the Council of Carthage, Hostiensis chose to emphasize the exceptions rather than the general principle: [Pacta custodiantur,] legitima . . . dum modo non sint contra leges, vel contra bonos mores, & nisi dolo fiant . . . . Nec servandum est pactum alii damnosum . . . nec servandum est, sivergat in detrimentum salutis aeternae, vel corporalis (Legitimate [pacts should be respected] . . . as long as they are not illicit or violative of good morals and there has been no fraud . . . . A pact that harms others is not to be kept . . . nor is it to be kept if it causes harm to spiritual or bodily health). (Hostiensis, Lectura, I, de pactis 1.6 in fine.) Given the convergence of these several factors - as well as others, such as the school doctrine of the iustum pretium or fair price (see James Gordley, "Equality in Exchange," 69 Cal. L. Rev. 1587, 1604-17 (1981)) - I would be surprised if pacta sunt servanda were to be found as a general principle in the medieval sources.

Nonetheless, the triumph of Christianity did provide one of the essential elements for the elaboration of the pacta maxim: it began the reevaluation of the accomplishments of the Roman Empire. Augustinus, for example, thought that, in their struggle for conquest, the Romans endured much suffering for merely material reward, while the real reward is in the City of God. (Augustinus, De civitate dei contra paganos 5.17 in fine.) As far as the Punic Wars were concerned, the final defeat of Carthage was ultimately as damaging to Rome as it was to the Carthaginians: "[W]hen in the last Punic War, Rome's rival in imperialism was destroyed root and branch . . . from then on the Roman republic was so overwhelmed by ills piled on ills that in her days of prosperity and security, which were the source from which, as morals yielded to 420 corruption, those ills accumulated, Rome stands out as more hurt by Carthage in so speedy a fall, than in so long an opposition previously." (Id. 3.21.) This heavily moralizing condemnation of Roman imperialism has attracted followers in modern times, and the responsibility for the Roman excesses is often laid at Cato's feet. "At the conclusion of each session in the senate, Cato used to say: 'And I also believe that Carthage must be destroyed,' and Cato was a true Roman. The Roman vision thus revealed itself as the cold abstraction of domination and power, as the simple egotism of one's own will against others, which produces no moral transcendence . . . ." (G.W.F. Hegel, Vorlesungen über die Philosophie der Geschichte 3.2, in 12 Werke 374 (E. Moldenhauer & K. Michel eds., 1970).)

The radical revision of attitudes toward conquest that took place in early Christianity may help to explain the odd coincidence that the sole source in the Decretals for the rule concerning pacts is a case decided in Carthage. Once the Council heard about the broken promise and the clash of jurisdictions, the bishops agreed that, in order to preserve peace, the agreement must be respected. Might the site of the gathering have had some impact on the result of the case? The ground where Carthage once stood seems to have troubled even the minds of generals. Caesar himself, who once passed the night near the spot, dreamt that he saw a whole army weeping. (Appian, Punic Wars 8.20.136.) Scipio Aemilianus, the general who gave the order to destroy the city, was overcome with grief as he watched Carthage burn. The depth of his emotion, reported by the Greek historians, is inseparably tied to the memory of the destruction of the city. As Appian described it: "Scipio, beholding this city, which had flourished 700 years from its foundation and had ruled over so many lands, islands, and seas, as rich in arms and fleets, elephants, and money as the mightiest empires, but far surpassing them in hardihood and high spirit (since, when stripped of all its ships and arms, it had sustained famine and a mighty war for three years), now come to its end in total destruction - Scipio, beholding this spectacle, is said to have shed tears and publicly lamented the fortune of the enemy. After meditating by himself a long time and reflecting on the inevitable fall of cities, nations, and empires, as well as of individuals, upon the fate of Troy, that once proud city, upon the fate of the Assyrian, the Median, and afterwards of the great Persian empire, and, most recently of all, of the splendid empire of Macedon, either voluntarily or otherwise the words of the poet escaped his lips:-

The day shall come in which our sacred Troy

And Priam, and the people over whom

Spear-bearing Priam rules, shall perish all.

Being asked by Polybius in familiar conversation (for Polybius had been his tutor) what he meant by using these words, Polybius says that Scipio did not hesitate frankly to name his own country, for whose fate he feared when he considered the mutability of human affairs. And Polybius wrote this down just as he heard it." (Id. 8.19.132 (quoting Homer, Iliad); see generally A.E. Astin, Scipio Aemilianus 282-87 (1967).)

In other words, the site of Carthage provokes reflection. It seems today to be universally acknowledged, as it was in antiquity, that a breach of the treaty between the two states provoked the final Punic War. Some, without choosing sides, report only that the treaty was broken: "This second treaty between the Romans and the Carthaginians lasted fifty years, until, upon an infraction of it, the third and last war broke out between them." (Appian, Punic Wars 8.1.2.) Some accept the Roman view that Carthage broke the treaty. (See Diodorus Siculus, Library of History 32.1.) Others hold that Rome breached. (See William Harris, War and Imperialism in Republican Rome234-40 (1979).) Still others, surmise that Rome, following its traditional practice (see 1 Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome 411-13 (1911)), deceitfully manipulated Carthage into a position in which breach was the only alternative. (See Theodor Mommsen, Römische Geschichte at 427-33.) The debate has been in progress since antiquity-Polybius having already reported the same arguments. (Polybius, Histories 36.9.) What everyone acknowledges is that the treaty was breached and that war and devastation were the results. Interestingly, the first two Punic Wars also seem to have been provoked by treaty breach-once again, in both cases, there is some liklihood that it was Rome that breached. (See Dorey & Dudley, Rome Against Carthage 3-5, 30-35.) The holding at the Council of Carthage clearly acknowledged this connection between broken promises and the risk to peace. Thus, the pacta maxim may have begun its long evolution as a reaction to the Roman destruction of Carthage, as well as, implicitly, to the rigor of Cato's injunction. The two adages would then be linked by more than a common grammatical construction.

Pacta servanda sunt. By the time Samuel Pufendorf came to consider the question of the binding effect of simple agreements, he 422 possessed the two essential ingredients needed to formulate pacta sunt servanda as a maxim and to raise it to a general principle. First, he was trained in the modern scientific method; and second, he had developed a theory of natural law that could make good use of the maxim.

Pufendorf had studied in Jena with Erhard Weigel, a philosopher, mathematician, and astronomer, whose local fame was due to his house, which, because it possessed a deep shaft through which the stars could be seen during the day, was celebrated in a well known hexameter about the sights to be seen in the small town:

Ara, caput, draco, mons, pons, vulpecula turris, Weigeliana domus; septem miraculea Jenae

(An altar, a head, a dragon, a hill, a bridge, the fox tower, The home of Weigel; the seven wonders of Jena).

Weigel believed that the pursuit of knowledge in all disciplines requires recourse to the mathematical method. (Erik Wolf, Grosse Rechtsdenker 320 (4th ed. 1963).) As a result, Weigel formulated a moral philosophy that owed nothing to theology and everything to mathematics: Mathesis non sit pars Philosophiae . . . sed quod sit ipsissima Philosophia (Mathematics is not :merely a part of philosophy . . . but rather is philosophy itself). (Erhard Weigel, Philosophia Mathematica 2.62 (Jena 1693).) This is also what Weigel taught to his students Leibniz and Pufendorf, and what he later elaborated in his treatise, Arithmetische Beschreibung der Moralweisheit.

Weigel probably taught Pufendorf the basic elements of the Galilean method of theory construction. Galileo's work was followed closely in learned circles of the time and had a profound effect on the natural law theorists. (See Welzel, Naturrecht und materiale Gerechtigkeit at 105; Franz Wieacker, Privatrechtsgeschichte der Neuzeit 307 (2d ed. 1967).) On the basis of this method, Pufendorf was able to distinguish a set of general principles-applying to all contractual transactions-from the more specific rules valid only for each type of contract. As a result, Pufendorf was apparently the first to isolate the general part from the special part of the law of obligations. (Wieacker, Privatrechtsgeschichte der Neuzeit at 310.)

The pacta maxim also fit well into Pufendorf's theoretical construction. One of the main topics of discussion among political theorists at the time was the work of Thomas Hobbes. Like Hobbes and other political thinkers of the Baroque, Pufendorf was commit- 423 ted to the institution of absolute monarchy. His immediate goal was to find a secular conception of monarchy that avoided the radical individualism he found in Hobbes'[s] Theory. Pufendorf resolved the Problem by means of two innovations in the natural law tradition. The first was the introduction of the concept of moral entities (entia moralia). (Samuel Pufendorf, De jure naturae et gentium libri octo 1.1.2 (James Brown Scott ed., C. & W. Oldfather trans., photo. reprint 1934) (Amsterdam 1688).) The notion of the moral entity provided Pufendorf with a means of examining the particular mode of existence of those entities that have the attribute of free will. Using this concept, Pufendorf was ,able to abstract from physical differences of quality and quantity and to Postulate a common moral framework not only for relations among individual human beings, but also for the relations between ruler and subject and for those between different states.

Pufendorf's second Innovation concerned his conception of the state of nature. Hobbes had conceived of the state of nature as the war of each against all. The birth of the; state, for Hobbes, was the only alternative to war, the only possibility for socializing individuals who share no common interests besides their membership in the same species. Pufendorf postulated instead that human beings are united by original bonds of sociality. The state of nature is a state of peace. (Id. 2.2.9.) Pufendorf believed that Hobbes'[s] theory would have disastrous consequences if applied to the field of international relations. If moral entities that have not been subjected to the same sovereign are necessarily in a constant state of war, then the normal state of relations between nation-states would be belligerence. (Id. 2.2.5.)

At the Same time, Pufendorf, who was writing just after the end of the Thirty Years' War, fully understood that the natural state of peace is weak and untrustworthy (debilem, & infidam) (id. 2.2.12), and therefore, without more, a poor custodian of collective safety. The reason is not difficult to discover - it lies in the lust for power and the cupidity that tempts both individuals and states. (Id.) At this point in the argument, Pufendorf found it useful to provide an example of the human potential for enmity. He cited the description given by Velleius Paterculus of the relations between the Romans and the Carthaginians: Aut bellum inter eos populos; auf belli praeparatio, aut infida pax fuit (There subsisted between these two nations, either war, or preparatïons for war, or unsettled peace). (Id. (quoting Paterculus, Historia Romana).)

Because they are moral entities, Pufendorf concluded, human beings cannot live without law. One source of that law is the law of nature. Based on his examination of the human condition and the initial but fragile state of peace, Pufendorf thought it clear that sociality is the fundamental law of nature: "Every human being, so far as possible, should cultivate and preserve toward others a social attitude, which is peaceful and agreeable at all times to the nature and end of the human race." (Id. 2.3.15.) As a result of what has been described as one of the bitterest scholarly debates of the Baroque period, Pufendorf ultimately managed to unseat theological conceptions of natural law, such as those viewing it as a remnant of our prelapsarian knowledge of God, and replace them with his secular derivation of natural law from the socialitas that is innate in human nature. (Hans Welzel, Die Naturrechtslehre Samuel Pufendorfs 31-51 (1958).)

Sociality, in turn, Pufendorf explained, is only partially secured by the norms that constitute the law of nature. Without more, they are insufficient to maintain peace. The gaps in the law of nature must be filled by agreement: "Although the nature and kind of agreements entered into by individuals . . . depend an each person's judgement, yet the law of nature commands, in a general way and indefinitely, that human beings enter into agreements of some kind or other, since without them social relations and peace . . . cannot be preserved." (Pufendorf, De jure naturae et gentium libri octo 3.4.1.) One of those agreements is the rulership pact, the agreement between the ruler and the multitude by which the state is constituted. (Id. 7.2.8.) But pacts of all kinds, both private and public, are necessary to fill out the framework created by the law of nature. The only hope for peace and security is for those pacts, once made, to be performed.

At this point, after seventeen centuries or so of preparation, the foundation for the pacta maxim had been laid. The heading of the relevant section in Pufendorf's treatise announces the maxim without qualification- Pacta servanda sunt. (Id. 3.4 summarium.) Pufendorf began the section by anchoring the maxim in his construction: Si quae autem inter homines ineuntur pacta, illa sancte ob servanda esse, sociabilis natura hominis requirit (Now whenever human beings enter into any agreements, human sociability requires that the agreements be faithfully observed). (Id. 3.4.2.)

Of course there was nothing original in Pufendorf's belief that it is important to keep one's word. The idea became almost a commonplace during the rise of consensualism. In fact, Pufendorf may 425 have imported into the learned tradition statements occasionally found in the Partikularrechte, the regional laws of the late medieval and early modern periods. Already in the 13th century, Beaumanoir had begun to separate the rule from the exceptions: Toutes convenences sont à tenir, et por ce dit on: "Convenance loi vaint" exceptées les convenences qui sont fetes par malveses causes (All agreements are to be kept, and for this it is said: "Agreement conquers law" except agreements that are made for an improper reason). (2 Philippe de Beaumanoir, Les coutumes du Beauvoisis 34.2 (Comte Beugnot ed., Paris 1842).) The 16th century law for the city of Freiburg, later much copied, affirmed the same principle: Wer bedechtlich zusagt der sol es halten (Whoever deliberately agrees must perform). ("Nüwe Stattrechten und Statuten der loblichen Statt Fryburg im Pryssgow gelegen," para. 8, in Lothar Seuffert, Zur Geschichte der obligatorischen Verträge 99 (1881).) Grotius shared the same view, which he stated by paraphrasing Ulpian: nihil esse tam congruum fidei humanae, quam ea quae inter eos placuerunt servare (nothing is so in harmony with the good faith of mankind as that persons should keep the agreements which they have made with one another). (Hugo Grotius, De jure belli ac pacis libri tres 2.11.1.4 (F. Kelsey trans., 1925) (5th ed. 1646) (paraphrasing Digest 2.14.1.pr.).) Grotius was so indebted to the classical jurists that he continued to conceive of the issue, as did they, in terms of identifying the circumstances that render a promise binding. The fact that Grotius did not himself formulate the pacta maxim suggests that a more fragile view of the social contract, such as Pufendorf's, is the true foundation of the maxim. It is possible, of course, that the maxim was originally formulated by one of Pufendorf's natural law predecessors, though it remains unlikely that anyone had quite as successfully integrated it into a system, or, to be precise, constructed a system around it.

This was Pufendorf's contribution, and yet it is unclear whether he recognized the extent of his originality. He repeatedly affirmed that the savants had always agreed that simple verbal pledges must be kept. (Pufendorf, De jure naturae et gentium libri octo 3.5.9.) Either he truly believed that he had borrowed the thought from the ancients, or he simply wished to camouflage his invention. In fact, here the story comes full circle. Pufendorf justified his sweeping claim that the scholars had always accepted that promises must be kept by quoting both the passage from Ulpian that opens the De pactis chapter in the Digest and Cicero's affirmation of the importance of good faith in De officiis. (Id. (quoting Cicero, De officiis 426 1.7).) Furthermore, Pufendorf invoked the Augustinian view that breaking a promise is equivalent to deceit. (Id. 3.4.2.) It is also of interest that the numerous exceptions that prevented Hostiensis, in his caution, from raising the maxim to a general principle posed no problem for the scientific method of Pufendorf. After stating the pacta principle as broadly as possible, Pufendorf noted some important exceptions to the rule, including a few of the very cases that Cicero had considered. He then concluded his revisionist history of the tradition by adding Machiavelli to the list of his predecessors. (Id. 4.2.8 (quoting Machiavelli, Istorie Fiorentine).)

Throughout his discussion of the maxim, Pufendorf was explicit about what he thought was at stake. On his mind was war: Quin & ex decepta fide iustissimae querelarum, bellique causae pullulare sunt idoneae (Nay more, from broken faith can arise the most just reasons for recriminations and war). (Id. 3.4.2.) In the field of international law, of course, Pufendorf was an acute observer. Many today believe that the lack of respect for international agreements is a cause of war (see Louis Le Fur, "La force obligatoire des traités," 10 Archives de Philosophie de droit et de Sociologie juridique 85 (1940)), and that a state that single-mindedly begins to prefer its own interests to its treaty commitments is often well along the path to war. (See Virginia L. Gott, "The National Socialist Theory of International Law," 32 Am. J. Int'l L. 704, 713 (1938).)

This strain of Pufendorf's thought has had an extraordinary influence on modern doctrine in international law. For one thing, the pacta maxim has been codified as the heading to article 26 of the Vienna Convention on the Law of Treaties. (1155 U.N.T.S. 331.) As one commentator has remarked, "the basic principle pacta sunt servanda [has been] designated by the Commission as 'the fundamental principle of the law of treaties.'" (Ian Sinclair, The Vienna Convention on the Law of Treaties 83 (2d ed. 1984).) Apparently, no international tribunal has ever repudiated the rule or questioned its validity. (Harvard Draft Convention on the Law of Treaties art. 20 comment, 29 Am. J. Int'l L. 977 (Supp. 1935).)

Other theorists have gone even further. Alfred Verdross, for example, has argued that the binding force of international agreements is logically prior to any particular agreement and therefore cannot itself be the result of an international treaty. For this reason he called the pacta maxim the Grundnorm, the basic norm of all international law. (Alfred Verdross, Die Verfassung der Völkerrechtsgemeinschaft 28-33 (1926).) In this view, the norm that is at 427 the origin of all positive international law is, in a way, a moral principle, but, as Cicero taught, not in the sense that it is required by our moral intuitions. Rather it is a consequence of a conception of society that fears the fragility of the original state of peace. In this way, this basic norm of international law seems to record the memory of the destruction of Carthage.

Malitiis non est indulgendum. The pacta maxim has also left its imprint an civilian codifications in the private law. Many of those codifications proclaim that contractual agreements are binding on the parties. The provision in the French Code limits the obligatian to agreements properly formed: Les conventions légalement formées tiennent lieu de loi à ceux qui les ont faites (Contracts that are legally formed have the force of law for those who made them). (Code civil art. 1134 (Fr.).) However, the qualification vanishes in the later codifications: Il contratto ha forza di legge tra le parti (A contract has the force of law among the Parties) (Codice civile art. 1372 (It.)); Las obligaciones que nacen de los contratos tienen fuerza de ley entre las partes contratantes, y deben cumplirse al tenor de los mismos (The obligations born of contracts have the force of law among the parties to the contract, and must be performed according to their terms) (Código civil art. 1091 (Sp.)).

What is intriguing to note, from across the water, is how natural the pacta conception of the binding force of agreements has become to those trained in the civil law system. The principle is now so firmly rooted in civilian learning that its codification seems to be an embarrassing and unnecessary banality: "The Provision here subject to commentary contains more of an oratorical affirmation with a pleonastic flourish than a true and effective normative statement; it is, even according to the basic principles of its editors and the proper economy of the Código civil, doctrinally gratuitous considering the traditional conception of private law . . . . Despite the sweep of the formulation, it is, therefore, a provision of little doctrinal importance and, as a consequence, of very limited practical utility . . . . (Agustín Luna Serrano, in 2 Cándido Paz-Ares Radríguez et al., Comentario del Código civil art. 1091 (1991).)

A primary impact of codifying the pacta maxim has been to encourage a particular interpretation of the role of legal norms, namely the view that they are designed to sanction the performance of moral duty. In this conception, the keeping of promises is considered to be a moral obligation, and the law of contract is viewed as the legal means to enforce that obligation: "The legal 428 obligation that requires performance from every party to a contract is nothing other than the moral duty to respect one's word." (1 Jacques Flour & Jean-Luc Aubert, Droit civil: les Obligations para. 69 (1975).) Several standard features of the civil codes can be traced directly to this idea, one of which may serve as an example: it is the moralizing conception of the nature of contractual remedies.

Many modern civilian codifications conceive of the purpose of contractual remedies as a sanction for the breach of a moral obligation. This conception yields two related consequences. The first is the preference for specific performance over money damages as the primary remedy for breach of contract. The contractual bond is considered to be a matter of such urgency that the aggrieved party, at least in principle, may always compel the other party to perform. In fact, this is how German law codifies the pacta idea: "On the basis of the obligation, the obligee has the right to demand performance from the obligor." (BGB § 241.) Frequently, when civilians are asked to justify their preference for specific remedies, they simply restate the pacta maxim in other words: "The obligor must perform the obligation at the time and in the manner agreed upon . . . . [I]f the obligor persists in refusing to perform, the law provides the obligee with the right and the means to compel performance . . . ." (7 Marcel Planiol & Georges Ripert, Traité pratique de droit civil fransais § 770 (2d ed. 1954).)

A second related element of this conception of contractual remedies has to do with money damages. Because the pacta idea converts the legal remedy into a sanction for the breach of a moral obligation, the degree of fault involved in the breach becomes a matter of importance. Thus, in the French Code, the party who breaches inadvertantly is liable only for foreseeable damages, while the party who breaches intentionally or fraudulently is responsible for all damages proximately caused. (Code civil arts. 1150-51.) When called upon to justify this result, one French authority cited one of the rare gerundives that I have been able to locate in a civilian treatise: Malitiis non est indulgendum (Malice must not be indulged). (2 Marcel Planiol, Traité élémentaire de droit civil § 234 (11th ed. 1932) (quoting, with slight modification, Digest 6.1.38).) The same principles apply as well in Italian and Spanish law. (See Codice civile arts. 1223, 1225 (It.); Código civil art. 1107 (Sp.).)

The pacta idea and its effects may seem so natural to civilian readers that it may come as a surprise that other visions of contractual obligation are possible. The central issue is the proper rela- 429 tionship between morality, an the one hand, and the law of contract an the other. The canonists recognized a moral element in the breach of a legal obligation when they classified a breached promise as a lie. Pufendorf raised the stakes considerably. For him, promises were morally binding less as a matter of everyday morality than as a result of social necessity. It is not our conventional moral intuition but rather the threat of social disintegration that is implicit in the pacta maxim. What the pacta maxim does is transform into a legal imperative what appears to be the only bulwark against the onslaught of war and devastation, namely an existentially hypercharged moral obligation to keep one's word.

Here the pacta maxim operates an almost imperceptible sleight of hand. It charges all contractual obligations with moral value, even those that may not have such value in conventional morality. In some cultures, the absolute commitment to perform a promise is encountered only when the promise is made to God-Jephthah's tragic promise may serve as an example. (Judges 11:30-40.) Pufendorf arrived at his position partially because his project involved binding the ruler to the rulership contract otherwise than through divine mandate. To provide more force to his result, Pufendorf argued that all contractual relations are governed by the same rules, whether private law agreements, treaties among states, or the social contract.

By contrast, some theories of contract have attempted to delimit separate realms for law and morality. American law has been shaped by one of the most powerful of these theories, namely the one advanced by Holmes. The American law of contract, for example, starts from the proposition that it is the role of the law - and not of morality - to decide which promises should be legally enforceable. There is no general rule in the common law, either in the form of the pacta maxim or in any other form, that all promises or all agreements are binding. In the American vision, a contract is simply a promise that the law, for whatever reason, has decided to enforce: "A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." (Restatement (Second) of Contracts § 1 (1981).) As a result, the imposition of a contractual duty does not predetermine the question of moral obligation: "The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass. In every case it leaves [the promisor] free . . . to break [the] contract if [it] chooses." (Oliver Wendell 430 Holmes, The Common Law 236 (M. Howe ed., 1963) (1881).) Furthermore, the extent of damages does not depend on the moral culpability of the breach: "'Willful' breaches have not been distinguished from other breaches . . . ." (Restatement (Second) of Contracts, introductory note to ch. 16 (Remedies), at 100.) In other words, a breach of contract, in American law, is not a tort. (Clark Fitzpatrick, Inc. v. Long Island R.R. Co., 521 N.Y.S.2d 653, 656-57 (N.Y. 1987).)

This may be the fundamental difference between the civilian and the common law visions of contract: "The contrast between the two approaches can be put in two statements: pacta sunt servanda for French law, which accordingly insists an exact performance of a contractual undertaking; and for the common law, Holmes'[s] celebrated statement . . . ." ("Conclusions," in Contract Law Today: Anglo-French Comparisons 379, 386 (D. Harris & D. Tallon eds., 1989).)

But the question remains: Why did the pacta maxim arise and triumph in the civil law while remaining foreign to the common law tradition? One explanation is self-evident: pacta sunt servanda is formulated in Latin. American law rarely has recourse to Latin maxims, especially at the level of general principle. The success of the maxim may be due to the peculiarly intimate relationship between continental European culture and the Latin language. If this is the case, then there are, in this context, yet further grounds for reflection. Latin was a living language during much of European history but has since passed away. Outside of relatively restricted circles within the Church, Latin is no longer either spoken or written. This is an extraordinary fact, and one that calls for much more commentary than it usually receives. One might wonder, for example, whether any language ever expires before all the potential it contains has been developed. What might be the potential of the Latin language?

The history of Rome may provide some indication. Rome was not Athens. It was not about philosophy and literature and art. The Roman achievement can be summed up, with very little omission, in terms of two ideas. The first is conquest: "The Romans, considering themselves to be destined for war and believing war to be the only art, devoted their entire spirit and all of their thoughts to perfecting it." (Montesquieu, Considérations sur les causes de la grandeur des romains et de leur décadence ch. 2, at 15 (Amsterdam 1734).) The other is the law: "The Romans lacked the versatility, manysidedness and imaginative power of the Greeks; their eminent 431 qualities are sober and acute thought, and firmness and perseverance of will. Their intellect was directed to the practical, and sometimes degenerated into egoism and cunning, just as their perseverance often turned into obstinancy and pedantry. In the domain of state and law these qualities accomplished great and enduring results, while they were decidedly unfavorable to art and literature." (1 Wilhelm Teuffel, History of Roman Literature 1 (C. Schwabe ed., 5th ed. 1967).) The intirnate relationship between delenda and pacta suggests that conquest and law may also have been the two essential poles of the Latin language.

Though spoken in Rome and on the Latium plain since at least the 7th century B.C., Latin is not thought to have become a literary language until 240 B.C., the year in which Livius Andronicus first produced a Latin play on the Greek model to amuse the soldiers returning from the victory over Carthage at the end of the First Punic War. Some years later, Gnaeus Naevius composed his Bellum Punicum, the first Roman epic poem, and one whose influence reached to Virgil.

The first Roman to become a distinguished writer of prose was Marcus Cato. Cato was a Roman's Roman, and his writings were the first great prose monument of the Latin language. Curiously, almost nothing is left of them. For example, Cicero knew over 150 of Cato's orations, but today only fragments survive. Similarly, only a few passages remain from Cato's Origines, the first history of Rome to be written in Latin. His treatise an agriculture, which still exists, was probably revised, or at least largely rearranged, by a later hand.

What survives most prominently of Cato's words is the phrase calling for the destruction of Carthage. No one who has read Plutarch's biography can doubt that the phrase was Cato's and that he did, in fact, repeat it incessantly. Cato was well known for the almost inaccessible brevitas of his speeches (Cicero, Brutus 66), and, as Plutarch suggested, he seems to have cultivated this reputation. (See Plutarch, Marcus Cato 12,.5.) Plutarch's biography culminates with the story of Cato and the fig, and every part of the tale is devoted to explaining how Cato, singlehandedly, could have brought about the destruction of Carthage. Even for the delenda phrase, however, there is curiously little authority in Latin. There is no trace of it in Cato's contemporaries nor, more suprisingly, in Cicero. The summaries left of Livy merely allude to the locution but do not quote it. (Livy, Ab urbe condita bk. 49.) It was not until the Silver Age, generations after Cato's death, that Latin writers 432 finally understood the profoundly Roman truth of the phrase and recorded it in its lapidary beauty. (Charles E. Little, "The Authenticity and Form of Cato's Saying 'Carthago Delenda Est,'" 29 Classical J. 429, 434-35 (1934).) Pliny included the phrase and the anecdote at the point in his natural history at which he discussed figs. The phrase is also found in the Epitome of Florus (1.31.4), written two, or perhaps even three, centuries after the fact, as well as in the 4th century biography of Cato earlier attributed to Aurelius Victor. (Aurelius Victor, De viris illustribus 47.8.) In Germany the phrase continued to evolve, finally being fixed in a slightly different form in the middle of the 19th century. (Silvia Thürlemann-Rapperswil, "'Ceterum censeo Carthaginem esse delendam,'" 81 Gymnasium 465, 474-75 (1974).)

In truth, where delenda has survived is in the minds of everyone who has ever learned Latin, as the perfect emblem of a culture dedicated at all costs to the preservation of its state, as well as of the hideous consequences that such a single-minded vision oft entails. Delenda seems to provoke the question that the Latin language sought during the course of two millennia to answer, namely what restraints are needed to hold in check such an exclusive focus on one's own interest. In other words, a phrase with the power of this one clearly required a counterpart. The creation of that counterpart occupied the long history of Roman law. The Roman legal discussion continually returned to questions of tying down, restraining, and binding (ob-ligare), whether it was by contract, marriage, or treaty. Tribonian codified the preliminary results, but the work was complete only after the systematization of the classical texts in Bologna, the moralizing influence of the canonists, and the absolutist conceptions of the natural law theorists. What all of that effort produced was the maxim pacta sunt servanda.

Shortly after Pufendorf, Latin succumbed to the vernacular and expired as a vehicle for legal culture. Two of the most memorable products of that language were these two phrases, connected by grammatical construction, by history, and by a gorgeously active symmetry of gender, number, word order, and inflection. Delenda is the call-the verb preceding the noun in the whisper of a question, the uneasy equation of the "-a" and the "-o". Pacta is the response-the dissonance resolved in the neuter plural, the noun restored to its place. After all, as the Digest tells us, pactum has the same root as pax. (Digest 2.14.1.) At this point, I stare out the window and speculate: Is it possible that the mission of the Latin language was simply to produce these two phrases? Might the 433 Corpus iuris, the canon law, and the school of Latin natural lawyers have served only as the means by which the Latin language explored its potential? Does the sudden decline of Latin after Pufendorf suggest that the force of the language was spent? To these questions, of course, there are no answers. In fact, it may not make sense to ask such questions at all.

Whatever it means in the end, the civilians are imbued with this Latin learning. Even today, they understand the civil law as the synthesis and development of the Roman, canon, and natural law traditions. Until the close of the 17th century, Latin was of course a living language in England as well. Yet even before Milton's century ended, Latin was being left behind there. With the years, Latin has all but disappeared from Anglo-American legal thought. Virtually never in the course of an American legal education does a professor suggest that Justinian, the canonists, or Latin natural law might be of any assistance in understanding the American legal system. Civil lawyers continue to lead a life of Latinity. We in the common law do not. In the end, what separates us, when we converse about the law, is only a language. But what a language it was.

*Associate Professor, Rutgers (Camden) Law School. I owe a deep debt of gratitude to Susan Bender and Ted McAdams, without whose enthusiasm and hospitality this essay could not have been written. I would also like to thank the editors of this journal for permitting me to publish in a somewhat unconventional format. Thanks as well are due to Jim Morgan for his superb research assistance. This paper was originally presented at the III Seminario de Historia del Derecho Privado, held in Sitges, Spain, in May 1992. I am especially grateful to Carlos Petit and Antonio Serrano for their kind invitation, as well as to the participants in the Seminario for their suggestions and encouragement. Translations of the classical authors are drawn from the Loeb Classical Library, published by the Harvard University Press, though, as with all the translations, I have taken the liberty of altering them where appropriate. The English version of the Digest of Justinian, cited in this Article as "Digest," is from the four-volume translation edited by Alan Watson. Unless otherwise noted, I am responsible for the remaining translations. To the questions I posed about how best to translate some of the Latin quotations, Hans Baade, Father John Lynch, Aldon Smith, and Alan Watson responded with extraordinary generosity and insight. However, since I did not ask. all the necessary questions, the inevitable errors are my own.