Edited by Hans-W. Micklitz
Chapter 15: The Transformation of Contractual Justice – A Historical and Comparative Account of the Impact of Consumption
Hannes Rösler 1 INTRODUCTION There has always been a ‘destructive and inventive’1 link between the driving idea of justice and the rather static legal systems. This dialectic issue gained political momentum with the French Revolution in 1789 and its two legal heirs, the Declaration of the Rights of Man and Citizen of the same year and the Code civil of 1804. The ‘Code Napoléon’ was intended to be ‘le Code du monde civilisé moderne’ and it spread across (not only) central Europe. However, in the course of the nationalisation process sparked by the Napoleonic wars, European private and commercial law was not just nationalised (replacing the ius commune, that is, the subsidiary and scholarly law that had spread across medieval Europe).2 It also became subject to the political concepts of liberté, égalité and fraternité.3 In particular, the issue of ‘liberty’ and ‘equality’ (in the sense of disregard for social status by stressing the liberté contractuelle or Vertragsfreiheit) has become a hallmark of the Code civil4 and the German BGB5 of 1900. Also connected with equality, the ‘soul of justice’,6 is the protection of the 1 Teubner (2009), p. 20: ‘What remains is nothing but a desperate searching which produces the permanent inner restlessness of law. New criteria of justice are relentlessly invented and new legal arguments constructed, and these very constructions destroy the possibility of justice. The search for justice becomes the addiction of law, destructive and inventive at the same time.’ 2 Leading finally...
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