A Critique of ‘Ordoliberalism’

According to a part of Italian legal literature (one which expresses the view of the great majority), the current proposals for a contract code, or even for simple preparatory documents for a contract code, restatements, or lists of principles, would have the serious defect of favouring only technical or formal aspects rather than codifying regulations aimed at protecting citizens’ rights. This method is, therefore, opposed at the outset. Acquis is assumed as a given right and the values on which acquis is based are also taken for granted, without considering that the sector of consumer interests is only a small part of the area of contract law and that a European citizen cannot be reduced to the mere level of a consumer. The values shared by the European Constitution and by the Treaty of Nice are totally different. They show a European citizen whose personal values are protected, rather than those of the market (even if this emphasis is sometimes considered insufficient).

These dangerous characteristics of a ‘market-centred’ legal system are insisted upon by those who have shown that, through European contract law, they would like to codify directives aimed at liberalising the market at a general level. This would favour the interests of professional operators, rather than those of European citizens (who would be reduced to the simple role of consumers of goods and services). European contract law, in the form of acquis, already serves these interests. This operation would expand this line of thought to all contract law, sacrificing the values and interests of the European ‘citizen’. In the experience of various countries, constitutional law and ordinary law, together with legislative action and doctrinal proposals, have enriched contract law as a stimulus for economic development, but also as a representation of individual values in negotiations between private parties. Criticism of the legislative method of standardization through single directives and criticisms regarding acquis, are multiplied in considering the possibility (which is here totally denied) of an ‘amorphous’, ‘technically neutral’ codification of contract law, which would have ideological connotations, as it would be aimed at protecting the interests of businessmen.

The ‘Manifesto’, which includes some criticisms by Italian authors, points out the lack of democracy in the process of constructing contract law. It demands greater social justice than that provided by acquis or any other current proposal, according to which just protecting some consumer rights (even at a less strong level) could in itself satisfy the need for a ‘fair contract law’. Furthermore, the ‘Manifesto’ underlines the danger that a reductio ad unum of contractual regulations, which are today a great resource of the rich diversity of national cultures, would end up flattened by bureaucratic language in a dull, ‘watered down’ version of the depth and meaningfulness of centuries-old traditions and of dynamic systems.

We can go further: it has been pointed out how changeable (that is inspired by different degrees of intervention and different spheres of action) is the welfarism of acquis and of EU rules related to contracts. We can distinguish:

  • (a) a model aimed at rationalising the functioning of the market and promoting the autonomy of the parties, mainly by imposing duties to give information;
  • (b) a model aimed at correcting market dynamics in order to make professional behaviour acceptable, by using rules of fair dealing;
  • (c) a model aimed at creating forms of distributive justice, which protect weaker parties and interfere with the content of the contract;
  • (d) an egalitarian-type model of distributive contract law aimed at protecting certain categories of ‘weak parties’;
  • (e) a model for action aimed at protecting parties that find themselves in particular difficulty, as in the case of ‘force majeure’;
  • (f) a model aimed at protecting public interests such as the environment or fundamental rights.

The answer to these varied techniques of intervention presupposes that the legislator has a freedom of action that would be seriously limited by a European Civil Code.