Two decades on, much of the scenario against which the Manifesto was written has changed. The substantive problems it highlighted, however, have not diminished – if anything, they have intensified. The tension between socially oriented and market-driven law remains. So too does the difficulty of thinking about social justice in a post-national context, as a renewed awareness of the cross-border dimensions of injustice makes a European perspective increasingly narrow. Similarly, the frameworks through which the relationship between justice and private law is understood seem to need some refinement.
Much of this discussion has traditionally focused on the difference between commutative and distributive justice, with the Manifesto aligning itself with the latter approach. However, alternative paradigms beyond this dichotomy have become dominant in both politics and critical theory, allowing for a broader articulation of justice claims. A reorientation of the focus from the commutative/distributive dichotomy to paradigms such as recognition/redistribution/representation seems necessary, raising additional questions about the affirmative/transformative nature of private law measures to achieve the ultimate goals.
Recognition and redistribution
The distinction refers to two ways of conceptualising social injustices, either as based on the unequal treatment of individuals and groups because of their identity and cultural specificities, or as inequalities rooted in their relationship to economic resources. One might be tempted to describe this as a difference between status and class, but this would be inaccurate, at least for the reason that recognition theorists assert the relevance of the concept to class-based injustices. Nevertheless, it is questionable whether applying the recognition framework alone to economic injustice yields significant results – just as, conversely, a redistributive framework cannot fully account for status discrimination. The increased focus on recognition has been criticised in particular by Nancy Fraser, who has warned of three risks in this regard: the reification of identities leading to segregation; the misframing of social justice issues; the displacement of redistributive concerns by recognition.
Let us consider the implications for private law. It can already be noted that the Manifesto, with its references to the need to respect identities and its redistributive concerns, was ideally open to both aspects. However, the articulation of the two categories remained to some extent implicit. Even in the resulting debate on social justice in European private law, the two overlapped (rather than intersected), making it easier for the argument based on identity to become an obstacle to a more comprehensive European model of social justice. Moreover, due to the specific problems posed by the Europeanisation process – the anchor point of that discussion – references to identity were largely conceived in terms of local or, specifically, national identities. Consideration for additional aspects, especially moving beyond the purely European perspective, appears as necessary.
Beyond the theoretical debate, legislative and regulatory interventions in private law have promoted specific conceptualisations of justice. There, injustice is largely framed in terms of discrimination and exclusion. This is consistent with the notion of misrecognition as requiring active correction of disrespect, and possibly with misdistribution as exclusion from economic resources. In particular, injustices rooted in status prejudice call for a response from anti-discrimination law, sometimes subsumed in a far-reaching discourse on the constitutionalisation of private law as a restriction of contractual freedom in the light of principles of equality.
Class-based injustices related to the economic role of individuals – such as workers or, less appropriately, consumers – are less immediately addressed by the same mechanism. Beyond the sometimes-limitative anti-discrimination framework (which also led to intersectional critique), the goal of inclusion became central. In recent decades, injustices have often been framed as problems of exclusion from specific market segments, to be addressed through sectoral regulation. Variations of the idea were articulated in labour law, as the focus shifted from protecting workers already in the labour market to facilitating access for those excluded, as well as in what concerns consumer participation in finance.
Affirmation and transformation
Those measures taken to counteract injustices can be roughly distinguished between affirmation and transformation, and both strategies are applicable to misrecognition and misdistribution. The former corrects the unjust results of unjust structures, the latter seeks to correct injustices by changing the underlying structure. This serves as the basis for a (relative) distinction between affirmative and transformative law, depending on whether it promotes structural change or inclusion within unchanged structures.
Inclusive contract law, in particular, is prima facie concerned with affirmation rather than transformation. However, it is clear that an inclusive contract law is not necessarily a socially just one: while promoting access to facilitate inclusion is an appealing idea, it can also be problematic. In the context of a politico-economic shift from the public to the private, in particular, it risks confusing social inclusion with market access. This is not surprising: it is well known that focusing solely on inclusion risks reinforcing injustices rooted in the very structure in which inclusion is sought. However, these critical observations should not be used to discredit inclusion as a tool for redressing injustices, especially when they are rooted in or intersect with status. Without an active transformative effort, in fact, this critique becomes a defeatist defence of the status quo. The appeal of a more radical approach emerges: structural transformation.
A multidimensional model of transformative private law
What does all this mean for a new social justice agenda in private law? In terms of the conceptualisation of injustice, the preliminary question is whether it should be framed as a problem of misdistribution or misrecognition. Importantly, this should not be seen as a dichotomy – let alone an exhaustive classification. Rather, the purpose of articulating the distinction is to ensure that one model does not cannibalise the other, potentially leading to a partial view of social justice, capable of addressing some injustices but not others. In fact, after criticising Honneth, Fraser did not promote the displacement of recognition by a renewed attention to distribution. Instead, she proposed a synthesis of the two as articulations of larger claims to social inclusion, presenting a two-dimensional theory of justice with a preference for at least partially transformative rather than solely affirmative measures – subject to pragmatic considerations that lead to quasi-reformist rather than implausibly subversive conclusions and recognising the long-term capacity of affirmation to produce transformation. Later, Fraser refined the model by making it three-dimensional in order to include the political/participatory dimension. This was intended to allow the model to move beyond views of justice rooted in a nation-state framework, to consider a third type of injustice in a broader transnational context: misrepresentation.
In terms of the means of redressing these injustices, what has been said suggests the urgency of a rethinking of access as a gateway to inclusion. In the case of market access in particular, access can only be a viable route to distributive justice if it is supported by safeguards within the market itself. Models of ‘access justice’ in consumer law are already being proposed that emphasise the relevance of both elements. Consequently, despite being occasionally portrayed as in an inverse relationship, access and protection are not antithetical but coessential. More fundamentally, a focus on inclusion/exclusion does not obviate the need to address structural injustices. Otherwise, addressing superficial injustices will merely paper over deeper cracks. At the same time, there is a need for sensible policies of inclusion to bring about transformation in the long term. A third aspect relevant to post-national contract law concerns participation: as economic activities expand their territorial reach, the potential injustice of misrepresentation becomes more likely and calls for new approaches to social justice and participation at the non-national level.
An example of the relevance of these conceptualisations is in relation to the global financial crisis of 2007-8, supposedly the event that ended the period of legal history in which the Manifesto itself was embedded. The crisis has conventionally been seen as linked to flaws in the system of access and recognition, due to the over-inclusion of vulnerable subjects as a result of the combined effect of class and status characteristics. Alternatively, its causes can be sought in the underlying structure of financial capitalism, which is predicated on the need for continuous financialisation and hence misdistribution. In the first case, the discussion about the role of the law necessarily revolves around the limits of access to finance and finding a new balance between the need for inclusion and the consideration that sometimes protection is better achieved through exclusion. The second approach opens the door to more radical analyses of the contribution of law to this structure and its global reach. Recognising this, new analyses have highlighted how financial capitalism is made possible by basic private law institutions. A multidimensional analysis must therefore take into account both the underlying financial dynamics and their exclusionary effects, as well as the aspect of participation in the global re-regulation process. Importantly, this is not a legal-historical account of a particular event, but a paradigm that can be applied more generally: analogous analyses could be applied to digital capitalism, for example.
That private law can serve a system that is questionable in terms of justice has been an acquired knowledge of critical legal theory for decades. Yet these analyses have been overshadowed by discourses that have downplayed various dimensions of justice. The contingent reasons for this may have been understandable in the supposed era of the end of history, which we came to believe offered no alternative to a system that could not be transformed, only made more accessible. Today’s complexity makes such an assumption seem untenable.
Art by Tomoko Nagao
Il quarto stato with motta, campari, pirelli, armani, prada, chicco, alitalia and visa at piazza duomo
2016 Digital contents
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