The last couple decades in Europe have been an exciting time for private law. European integration created a dazzling opportunity to articulate a distinctly European private law, potentially even overcoming the classic line between common and civil law.
As it happens, even before the departure of the United Kingdom from the European Union, this project failed in its more ambitious forms. Although legal convergence would fit the mandate to harmonize the common market, it turned out that there was substantial disagreement even within continental Europe about what a European private law should look like.
The quiescence of the convergence project has actually opened space for a less politically fraught and doctrinally constrained discussion of contract law in Europe. Delinked from the political will to integrate or constitutional constraints on what the basis for a common framework could be, the conversation has broadened to ask first order questions about the basis for contract law in Europe. That conversation just got a big theoretical boost from Martijn Hesselink.
In Justifying Contract in Europe: Political Philosophies of European Contract Law, Hesselink explores how Europeans think about contract. By grounding divergent approaches to contract in divergent political theories, he is at once generous and rigorous in his characterization of diversity. That is, he starts with the premise that disagreement about fundamental policies does not reflect simple error but engages hard questions to which no democratic society has generated a univocal and consistent answer. Disagreement about contract doctrine reflects at some level potentially deep disagreement about the animating principles of contract, and the relative priority of distinct ends that contract serves. These disagreements themselves are rooted in divergent political philosophies. We cannot dismiss opposing views on contract without dismissing philosophical schools of thought that are rich and embedded in a variety of institutions. That is to say, we should take disagreement about contract seriously.
Hesselink takes disagreement seriously not only because it runs deep, but also because the primary parties to disagreement are neither bureaucrats nor political actors. They are the citizens of states that must make choices about the degree to which they should aim to harmonize their contract law with those of other states (whether in the context of the European Union or outside of that region); when contracts should be legally binding and with what consequence upon breach; to what extent weaker parties should be protected (and, of course, who is weak and from whom must they be protected); the boundaries of freedom of contract, and; the relative scope of default and mandatory rules in contract. One might object that citizens do not really make these choices, and indeed, many are not aware that these are choices they must collectively make. It is the job of lawyers–in a number of roles, including legal scholars–to construct a public discourse that underpins a society’s answers to these questions. That discourse helps to form collective answers, in part through exchange of ideas and arguments, but ultimately also by deciphering intellectual preferences as they stand among the people that will be governed by contract’s rules.
One of Hesselink’s insights is that we cannot take people to be silent about or indifferent to contract if they have not petitioned for a different rule on damages or organized a political action committee against the rule of consideration. Democracies sort through questions about contract by way of underlying political philosophies that direct political communities to distinct answers. Hesselink considers six leading theories: utilitarianism; liberal-egalitarianism; libertarianism; communitarianism; civic republicanism, and; discourse theory. We find robust debate among proponents of these philosophies even if we rarely find direct political engagement with contract. In fact, debate among these ideologies is effectively (albeit not limited to) a debate among approaches to contract.
American talk about contract law is almost entirely devoted to the question of what the best rules would be, without worrying too much about the process by which those rules are made or how our choices connect with other political questions. European integration put front and center in Europe meta-questions about the procedural legitimacy of contract law and the phenomenon of deep disagreement about what it should look like, even among liberal democratic states. In light of their heated debates, Hesselink has taken a much-needed step back to assess the democratic basis of contract law. American legal scholars should go there with him.