At the Roots of European Private Law: Social Justice, Solidarity and Conflict in the Proprietary Order

Abstract

The paper identifies three different approaches to social justice in contract law, corresponding to a classical liberal model, an ordoliberal model and the model consistent with European post-war constitutionalism. (i) In the classical liberal model law enforces the outcome of the social conflict and attributes juridical strength to social strength: contract law protects the spontaneous result of social conflict and the execution of the contract as it has been freely stipulated. This model is based on conflict, whose result is embedded by law. (ii) Ordoliberals intended to complete the bourgeois revolution, which assured individual freedom, but missed to develop an order in which individual freedom could be developed. This is exactly what the state had to do with interventions necessary to prevent market failures, i.e. necessary to conform and functionalize economic freedoms for the survive of an economic system based on competition. In line with this, contract law has to hide and shape social conflict, adapting the behaviour of contractual parties to achieve the aims pursued by the legal system. Cooperation between the parties to the contract has to be encouraged, i.e. solidarity vis-a-vis the system. There is no direct intervention aimed at balancing social weakness and, if this occurs, it is only an indirect effect. Ordoliberalism is now the paradigma of EC-contact law, as it is made clear by the many references to social market economy. EC-contract law based on cooperation is a contract law without solidarity: social justice may be an effect of contract regulation, but it is only a indirect effect. (iii) European national constitutionalism reacted at the end of 2nd world war to the ordoliberal paradigm. Solidarity became a way of distributing wealth: vertical solidarity between the State and its citizens and horizontal solidarity among citizens. Vertical solidarity is the one assured by the welfare state: it shapes indirectly the market, but it does not affect the market. Horizontal solidarity affects the market in a way that is different from the idea of enhancing cooperation between market operators towards a result that is beyond their interests. Conflict is therefore recognised, but is shaped ensuring equality arms for the parties: law fights social weakness with legal strength and social strength with legal weakness. This is the core of a social justice model which is based on both conflict and solidarity.