Sefton-Green, Ruth --- "A Vision of Social Justice in French Private Law: Paternalism and Solidarity" [2011] ELECD 676; in Micklitz, Hans-W. (ed), "The Many Concepts of Social Justice in European Private Law" (Edward Elgar Publishing, 2011)

Book Title: The Many Concepts of Social Justice in European Private Law

Editor(s): Micklitz, Hans-W.

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849802604

Section: Chapter 11

Section Title: A Vision of Social Justice in French Private Law: Paternalism and Solidarity

Author(s): Sefton-Green, Ruth

Number of pages: 20

Extract:

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 func-
tions 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-regard-
ing 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 contrac-
tual en particulier ou le soldarisme contractuel a-t-il un rapport avec la solidarité?',
Revue des Recherches Juridiques, ...