ARCHITECTURE

3.1.4
the will
theory of
contract:
procedure
takes
command
property, forcing the borrower to sell and pay off the
debt. The proceeds of the sale over and above the
debt, however, went to the original owner, a remainder
that was said to be his “equity” in the land. Thus
by the late eighteenth century, a shift in the conception
of justice can be seen in the development of
mortgages: from equity as a principle of substantive
fairness (referring to an absolute, universal measure
of justice), to equity as a stake in capital (referring to
the relative value of a financial interest). 9
If customary practices were giving way to
more formally privatized contractual relations, the
increasing autonomy of individuals with respect to
their sovereign was echoed in the way land itself
was understood and used. Previously, under feudal
conditions, land had been understood in terms of its
capacity to sustain the peasant families (and their
lords) living from it. Soil fertility, measured in the
specific amount of seeding required to feed a number
of families, was giving way to an abstract quality
that could be compared quantitatively across vastly
different contexts: the notion of geometric area and
the practice of measurement (surveying) mediated a
transition from the subsistence economy to the development
of speculative agricultural and real estate
markets. Land was becoming less important for how
it could specifically sustain a particular community,
and more important for how it could produce value
for an anonymous market—either agriculturally
(disembedding socio-ecological relationships) or in
itself as a universalized territorial commodity that
could be sold in the land market. 10 This shift thus
made land abstract in the sense of being understood
(or represented) as equal to other lands which were
comparable to it only by reference to an external
signifier, the price of a unit area, in a “universal”
sphere, the market. 11
As commodities were increasingly produced for the
market, and labor sold for wages, the rise of liberal
philosophy and political economy helped to configure
how, and by whom, these things were to be exchanged.
Toward the end of the eighteenth century,
the equitable theory of contract was being displaced
by a “will” theory in which the value of things being
exchanged was no longer understood as being objective,
as it had under substantive principles of law. 12
Rather, exchanges were increasingly viewed as occurring
between sovereign individuals (namely, entrepreneurs
and merchants) who competitively determined,
on their own, the value of their exchanges.
Individuals’ subjective judgments of value were
now understood and accepted as being objectively
unequal: rooted in arbitrary and relative individual
desires. 13 The courts began deferring to the particular
terms of the contract arranged between individuals,
thus neutralizing the extent of the authority and
use of the Common Law tradition. Judges only ruled
on the lawfulness of an exchange in cases where
fraud was clearly involved. The contract became a
vehicle by which individuals could “contract out” of
normative straitjackets, pitting rules of commercial
usage against the rule of Common Law. “Equity,”
understood as fairness, was no longer a variable in
judicial rulings: the contract was now sovereign, and
“absolute fairness” was fragmented into the unique,
localized, and incommensurable nature of each particular
exchange. 14
The causes for this shift from a substantive to
a procedural view of the contract are simultaneously
technical and philosophical. Judges recognized the
diversity and complexity of commercial customs,
but could not rule on them both for practical reasons
(they lacked the specific know-how to decide on the
technical aspects of increasingly heterogeneous and
sophisticated bargains), and for ideological reasons
(they preferred not to interfere with the growth of
business). However, seeing the contract as an intrinsically
unknowable meeting of desiring wills—the
black box of commercial customs—could itself be articulated
as a universal law by construing each particular
commercial contract as a disaggregated chapter
of universality itself. The merchants’ particularism
was thus elevated to the universal: justice deferred
to the exceptionalism of the merchant classes as the
ostensibly natural agent of social progress. 15
The radical subjectivism of contracts between
private individuals, understood as the simple expression
of a “meeting of minds” that cannot be predetermined,
became the objective basis upon which a
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