Rösler, Hannes --- "The Transformation of Contractual Justice – A Historical and Comparative Account of the Impact of Consumption" [2011] ELECD 682; 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 15

Section Title: The Transformation of Contractual Justice – A Historical and Comparative Account of the Impact of Consumption

Author(s): Rösler, Hannes

Number of pages: 32

Extract:

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 nation-
alised (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 construc-
tions destroy the possibility of justice. ...