The Policy, Politics and Aesthetics of Non-American Private Law: A Study of Contract Performance Interruption in France, England, Quebec and English Canada

Abstract

In the United States, it is widely accepted that “policy,” meaning considerations that are not deductive or commutative and that include the societal and economic impact of legal rules, plays an important role in private law reasoning. In France, England, Quebec and English Canada, however, the role of policy in private law is either strenuously denied or reduced to an exceptional consideration of social concerns under residual doctrines like good faith, abuse of right or unconscionability. As a result, full-blown and routine invocations of policy are still considered to be an exotic American feature and to be absent from these systems. In this article, I refute this persisting view and show that such policy arguments are as a matter of fact relied on by authoritative actors in France, England, Quebec and English Canada. Taking the interruption of contractual performance following breach as a case study, I rely on cases and treatises from these four jurisdictions to produce an integrated repertoire of policy arguments that have been invoked for a series of related contract law questions. By demonstrating empirically that policy routinely intervenes in several non-American Western jurisdictions, I provide the basis for the application of American private law insights in legal systems where they have largely been ignored. I suggest that there are important political and aesthetic stakes to this jurisprudential transplantation, in that it allows for innovative forms of contestation of market-based normative reasoning and of the traditional professional styles adopted by non-American jurists.