Monceri, Flavia --- "Queering the contractual paradigm between law and political theory" [2017] ELECD 614; in Monateri, Giuseppe Pier (ed), "Comparative Contract Law" (Edward Elgar Publishing, 2017) 303

Book Title: Comparative Contract Law

Editor(s): Monateri, Giuseppe Pier

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804516

Section: Chapter 13

Section Title: Queering the contractual paradigm between law and political theory

Author(s): Monceri, Flavia

Number of pages: 19

Abstract/Description:

The idea that the social institution we are used to naming ‘state’ has been established by means of a (social) ‘contract’ is surely one of the most appealing in the history of modern and contemporary Western political thought. Of course, the fact that such an idea has been able to become the dominant, most widely accepted, explanation of the origins of the state does not mean that it is the only one possibility for thinking about those origins, for different explanations have been suggested, not least the one proposed by Carl Menger (and subsequently the so-called Austrian School), according to whom a great variety of social phenomena, including the state, have in fact an ‘organic/spontaneous’ root that needs no explicit ‘agreement’ or ‘contract’ (Menger [1883] 1985). So the question may arise concerning the reason why the ‘contractual paradigm’ has been so successful in overwhelming competing accounts about the origins of the (modern) state to the extent that it still seems that political theory cannot avoid referring to some kind of ‘original contract’, especially if contemporary democratic regimes are to pursue ‘social justice’ as their ultimate goal (see notably Rawls [1971] 1999).