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The Many Concepts of Social Justice in European Private Law

The Many Concepts of Social Justice in European Private Law

Edited by Hans-W. Micklitz

This insightful book, with contributions from leading international scholars, examines the European model of social justice in private law that has developed over the 20th century.

Chapter 11: A Vision of Social Justice in French Private Law: Paternalism and Solidarity

Ruth Sefton-Green

Subjects: law - academic, european law, private international law


Ruth Sefton-Green This chapter examines the hypothesis that French private law’s conception, or even vision, of social justice is characterised by paternalism and solidarity. Solidarity is, at least intuitively, the bedrock of social justice. Solidarity is the phenomenon of collective identification;1 the reason why we identify with one another in a given society. It explains the social bonds of society, that is, why we help those who are close to us, why we give or contribute to others, altruistically without expecting anything in return. It is because we recognise objectively a social bond, and subjectively a resemblance, that solidarity functions as it does and aspires to social justice. It follows, at least intuitively, that solidarity is underpinned by distributive aims. The link between solidarity and distributive justice, as a facet of social justice, needs to be examined. The French doctrine of contractual solidarity (solidarisme contractuel)2 has attempted to apply the idea of solidarity to contract law. This chapter evaluates this effort while suggesting that solidarity may still have unexplored potential in private law. Paternalism can be understood as the restriction of a person’s ‘self-regarding conduct primarily for his own good’.3 Duncan Kennedy has suggested that 1 See Mignot, M. (2004), ‘De la solidarité en general, et du solidarisme contractual en particulier ou le soldarisme contractuel a-t-il un rapport avec la solidarité?’, Revue des Recherches Juridiques, 4, 2153, at 2158–9. 2 Jamin, C. (2001), ‘Plaidoyer pour un solidarisme contractuel’, in Etudes offertes à Jacques Ghestin: Le contract au...

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