Five Political Ideas of European Contract Law
Martijn W. Hesselink
University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
February 12, 2011
European Review of Contract Law, Vol. 7, No. 2), pp. 295-313. 2011
Centre for the Study of European Contract Law Working Paper No. 2011/05
This paper explores the possible implications of leading contemporary theories of political philosophy for some of the main questions that the political institutions of the European Union will have to decide on concerning the future of European contract law. In particular, it addresses the questions whether contract law should be European; whether it should be optional; what its content should be (including whether it should contain rules protecting certain weaker parties); and whether it should come about through a democratic process. I submit each of these questions to five leading theories of contemporary political philosophy. Thus, I explore what a utilitarian, liberal-egalitarian, libertarian, communitarian, deliberative/citizenship idea of European contract law might look like. In this way, leading theories of social justice are linked up to the grand questions of European contract law. Ultimately, an analysis of this kind could lead to a rather comprehensive matrix of the main political positions concerning the principal normative questions of European contract law. It is submitted that a political-philosophical analysis of European contract law along these lines could provide a fuller picture than one-dimensional schemes of left-versus-right, diachronic accounts featuring one leading idea at a time, or space-time analyses in terms of national political traditions.
The primary aim of the paper is to demonstrate the relevance of social justice theories to some of the main issues concerning the future of European contract and, conversely, to indicate the relevance of (European) contract law to political philosophy. In other words, the aim is to show that whether we live in a just society depends, in part, on the contract law that we have, and, conversely, that contractual justice is, at least in part, a matter of social justice. Thus, it is also meant as a response to those who argue that private law is merely a matter of individual (notably commutative) justice. A second, more practical aim is to provide the stakeholders (including legal academics) and politicians that are currently called upon, by the European Commission’s Green Paper, to submit their views on ‘policy options for progress towards a European Contract Law for consumers and businesses’ with an idea of what a position in terms of an articulate and comprehensive political theory might look like.
Within the actual debate on European contract law, sometimes theories of contemporary political philosophy (or more classical ones) are explicitly invoked in order to justify a certain normative position. More often, however, without any explicit claims being made by anyone, there exist in fact structural similarities between discourses. Instances of such congruence are provided throughout the paper.
An important question is whether it is possible and desirable to explain and justify one's concept of European contract law and its future exclusively in terms of one single of these five political ideas of European contract law. The tentative answer in this paper is that a pluralist or composite idea of European contract law is more attractive than a monist one.
Number of Pages in PDF File: 16
Keywords: European Contract Law, Political Philosophy, Private Law Theory
Date posted: February 13, 2011 ; Last revised: June 28, 2011