Desire for Text: Bridling the Divisional Strategy of Contract
Femia, Pasquale, Law and Contemporary Problems
Nous avons un irresistible besoin d'un texte qui donne au juge le pouvoir de briser les conventions abusives. (1)
In 1907 the French jurist Georges Ripert, considering the first diffusion of standard contracts, regretted the lack of a statute regulating abusive clauses. "We have"--he said--"an irresistible need for a text that empowers the judge to break abusive contracts." Un irresistible besoin: What can he not resist? Besoin d'un texte: In which sense does a text become an object of desire?
Ripert was a conservative thinker: for him, no one but the state should be allowed to rewrite the rights of private citizens. According to his classical scheme, the protection of the individual and the public monopoly on the legislative process support one another: any attempt to reconstruct the categories of private law by emphasizing their social function is treated as a subversion of the fundamental exclusion (there is nothing beyond the individual) that lies at the core of legal science. That is why, twenty-two years later, Ripert harshly criticized Louis Josserand's celebrated work on the social function of rights, charging the author with bolshevism. (2)
Ripert's critique of Josserand was as fierce as his need for a text was irresistible. (3) The irresistible besoin d'un texte and the desperate search for a trace left by the Legislator are symptoms of lex-addiction. According to positive law's theoretical narrative, only legislative intent can, as an immanent deus ex machina, solve any legal question. Thus, Ripert sought to curb abusive contracts, but only with the permission of a public text.
More than a century after Ripert's revelation, legal science shows the same difficulties with treating the contract as a source of power. Desire for public text and resistance against complete textualization are two faces of the same phenomenon: all legal writings are in statutes, all legal facts are in contracts. Statutes count as intangible, and thus sacralized, laws. They are a modern rendition of ius sacrum. (4) Contracts count as a sacralization of the private anomie. Thus, contracts cannot be reduced to their writing not only out of respect for the parties' freedom, but also out of respect for the real event, the real modus essendi of the agreement (volenti non fit iniuria is a source of anomie). In this scheme, contractual fairness is irrelevant; if it is protected, that is only by accident.
The hermeneutic turn, established in European legal science since the mid-fifties of the last century, has not really had any significant effect on the inability of legal science to ensure contractual fairness. The statement, often repeated, that the judges make law, simply hides the issue within the context of creation, a zone of indistinction between law and politics. Judging and adjudication remain mysterious activities, the result of obscure insights, perhaps nothing but representations of a hegemonic sense of order.
A different approach to the problem of contractual fairness is to study the contract as radical writing in a whole intertextual vision of the legal phenomenon. (5) Under this view, laws and contracts are both parts of a global intertext, a set of signs through which they develop every legal communication according to the systemic operational criteria.
This article describes how to study the contract as radical writing, and the implications of such study. Part II begins by revealing a contradiction in the classical model: on the one hand, it insists on an epistemic divide between statutes (writings) and contracts (facts), while on the other hand, it considers both as divided unity. Part III explains the proper sense of the construction of the contract as radical writing and the power effects behind the classical view. Part IV places this discussion in the wider context of the systemic contractual functioning, and describes a systemic problem unveiled by studying the contract as radical writing. …