A Critique of Legislative Intervention

Among the many, interesting ideas that have arisen, there is also one, cloaked in deep scepticism, which sees in the ‘European’ code the illusion of reacting to the process of globalization (which is now irreversible in terms of timescales, methods and territorial borders) by preserving values and techniques of contractual law that are destined to be overwhelmed by supranational practices. Furthermore, this illusion is eroded not only at the highest level — that of the regulations of world globalization — but also at lower levels, given that, in many countries, contractual law also has regional origins and is no longer subject to the rigours of state law but is in competition with it. The codification of a European contract law would, therefore, be in conflict with globalized law and would inevitably be defeated by it and, with be in conflict with local laws, as it would represent authoritarian and anti-pluralist tendencies.

This line of thought is shared by those who believe that only the lex mercatoria — obviously the new lex mercatoria — would be able to provide for the economic needs of the market. These are joined by the critiques of those who conceive a contract not as the simple ‘legal guise’ of an economic operation but as the conventional means of realising private interests that the legislator can enrich with social content. So the discussion returns to the political not technical concepts of ‘contract’, ‘freedom of contract’, ‘private autonomy’ and of the role of the legislator and the judge in controlling the conduct of the parties to the contract, and of the aim, form and content of their transactions.