Chapter 7: The Constitutionalization of European Private Law as a Path to Social Justice?
Hugh Collins1 When the European Commission appeared to be pressing hard for harmonization or unification of contract law,2 some feared that any European civil code that might emerge would systematically embed into the fabric of the transnational legal order a rather regressive set of rules. The apparent danger was that the European legislative organs would endorse a code of rules infused with nineteenth-century liberal or laissez-faire values that celebrated freedom of contract and the protection of private property at the expense of the protection of consumers, workers, tenants and other kinds of weaker parties. In articulating this concern, the Manifesto on Social Justice in European Private Law pressed the case for ensuring that the emerging European private law would establish appropriate standards for social justice in its rules and principles.3 Although not defined precisely, the idea of social justice evidently refers to concepts of fairness in the distribution of wealth, power, and other goods; and the idea of fairness suggests that this distribution should be more equal than might otherwise occur through an unfettered market process. Thus the ambition of the Manifesto was to promote a fairer society in the European Union (EU) by means of new laws on contract, tort, property and other aspects of private law. To achieve that aim, among other proposals, the Manifesto argued that European private law should draw upon constitutional principles. The precise content of this proposal and how it was to be achieved was controversial among the group of authors (which included...
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