Edited by Hans-W. Micklitz
Chapter 11: A Vision of Social Justice in French Private Law: Paternalism and Solidarity
11. A vision of social justice in French private law: paternalism and solidarity 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)...
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