Marella, Maria Rosaria --- "Who is the contracting party? A trip around the transformation of the legal subject" [2017] ELECD 611; in Monateri, Giuseppe Pier (ed), "Comparative Contract Law" (Edward Elgar Publishing, 2017) 205

Book Title: Comparative Contract Law

Editor(s): Monateri, Giuseppe Pier

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804516

Section: Chapter 10

Section Title: Who is the contracting party? A trip around the transformation of the legal subject

Author(s): Marella, Maria Rosaria

Number of pages: 11

Abstract/Description:

The subject of law is one of the most powerful creations of Classical Legal Thought (hereinafter CLT), that stage of legal science that developed in the second part of the nineteenth century. In its theoretical foundation the notion of legal subject has lasted almost unchanged through the second globalization, which characterizes the first part of the twentieth century till the early seventies and is marked by the dominance of social thought. In this chapter I maintain that the idea of the legal subject has now come to an end or, at least, it is undergoing dramatic changes that will deeply transform its significance. This chapter is an attempt to highlight, first, the epiphanies of this crisis in new constitutions, bills of rights or other legal texts, and secondly the different projects that issue from it and/or represent directions to the way out. My aspiration is to contribute to the general discussion by investigating the extent to which these normative projects embody the characteristic traits of CLT or of the social (or a combination of them) according to the picture of the third globalization drawn by Duncan Kennedy, or whether, on the contrary, they depart from them, tracing new patterns. In CLT the subject of law is a pure legal abstraction. Its disembodiment shapes it as universalistic and transversal to all legal fields with the exception of family law, where subjects are neither disembodied nor equal.