Academic journal article Law and Contemporary Problems

Private Law as Biopolitics: Ordoliberalism, Social Market Economy, and the Public Dimension of Contract

Academic journal article Law and Contemporary Problems

Private Law as Biopolitics: Ordoliberalism, Social Market Economy, and the Public Dimension of Contract

Article excerpt

I

INTRODUCTION

The transition of society from bourgeois to capitalist, that is, the coming of the Industrial after the French Revolution, transformed the proprietary order into a proprietary organism, incapable of producing emancipation. Private law was still the foundation of society and still had to free the individual. Nevertheless, pluralism had to be opposed in order to force economic behavior into cooperative schemes able to produce systemic balance and development. This is the point of reference for understanding the public dimension of contract law consistent with ordoliberalism, in which citizenship is reinterpreted through market categories: in particular those stressing that producers and consumers hold delegated economic police functions and have to react automatically to market stimuli.

For many reasons the European Union has been conceived as an ordoliberal construct since its very beginning. Many efforts have been and still continue to be made to develop the idea that the common or internal market is "at the heart of the European project." (1) That's why EU law is mainly concerned with the prevention of market failures--that is, with the imposition of the correct functioning of free competition. This goal is achieved by initiatives that are sharply criticized for showing little respect for democratic decision-making, such as those related to the recent sovereign debt restructuring. Indeed, sovereign debt restructuring is legitimating imposed legal change expected to enhance the efficient functioning of the market in ordoliberal terms. (2)

To some extent this outcome is not surprising at all. From its very beginning, the ordoliberal agenda encouraged transformations in the balance between politics and economics that must be seen as a continuation of the process of the publicization of private law, the same process started with the crisis of the bourgeois society and the emergence of the capitalist one. (3) This crisis culminated in the fascist reform of economic freedoms realized through the suppression of political freedoms. Even if political freedoms were reestablished after the fall of fascism, economic freedoms still characterize the construct of Europe as an ordoliberal project affecting, among others, the formation of a European contract law. (4) This is what the concept of social market economy represents: supporting the formation of an economic police state to impose an economic eugenics and delegating economic police functions to individuals to accomplish related systemic tasks. (5)

These are the points of reference for considering ordoliberalism and social market economy as biopolitics, as well as the related private law and public dimension of contract. (6)

II

THE PUBLICIZATION OF PRIVATE LAW

Notoriously, the distinction between private and public law is an artificial one. It was conceived in a time when the economic and political spheres had to be separated, the first representing the protection of the individual menaced by the invasion of the second. While the political sphere was an organicist ambience dissolving the individual within the order (well represented by the image of the Leviathan), (7) the economic sphere had to enhance individual freedom and emancipation, understood as access to the proprietary order. (8)

The identification of the individual with the owner, and that of society with private law society, took place in a pre-capitalist context: it did not mean to impose "the rites of cannibalism in the name of self-interest." (9) Indeed, as was typical for a time when economics was still part of moral philosophy, accumulation beyond real utility had no justification--everyone could obtain property through labor, and workers had to be assured wages "at least sufficient to maintain" themselves. (10) These were the foundations of the bourgeois society, in which the mythical invisible hand was understood to coordinate utilitarian behavior and induced the rich to "make nearly the same distribution of necessaries of life which would have been made had the earth been divided into equal portions among all its inhabitants. …

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