Goals: New Elements in a Contract Law of the Welfare State

  • Thomas Wilhelmsson
Part of the Law and Philosophy Library book series (LAPS, volume 16)


There is a close interplay between the law and social ideology. One point of departure for assessing what is socially possible when developing the general principles must therefore be sought in the prevailing social ideology.


Welfare State Legal Order Relative Poverty General Clause Legal Thinking 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.


Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.


  1. 1.
    In West German critical social science, the concept “social state” has from time to time been set as an emancipatory concept against “welfare state”: see e.g. Joerges 1989 p. 613 ff. In this work the concept “welfare state” — as in Nordic usage — is perceived as more extensiveGoogle Scholar
  2. 2.
    Erâsaari 1984 p. 113.Google Scholar
  3. 3.
    See e.g. Karisto - Takala - Haapola 1984 p. 103 ff.Google Scholar
  4. 4.
    Vallauri 1985 p. 190.Google Scholar
  5. 5.
    Thus e.g. for Finland, Karisto - Takala - Haapola 1984 p. 107 f. ’ See Karisto 1985 p. 40.Google Scholar
  6. 6.
    Here it suffices to refer to the forthcoming report of the Hamburg Conference of 22–23.9.1989 on Unemployment and Consumer Debts in Europe.Google Scholar
  7. 8.
    Eräsaari 1984 p. 116 f.Google Scholar
  8. 9.
    See e.g. Unger 1976 p. 198 f., Köndgen 1981 p. 135 ff.Google Scholar
  9. 10.
    Cf. also Groth 1986 p. 373: “Schuldnerberatung ist Sozialarbeit” (Counselling debtors is social work).Google Scholar
  10. 11.
    Esser - Schmidt 1984 p. 6; “Im Schuldrecht werden ”kleinere Brötchen gebacken“.”Google Scholar
  11. 12.
    The discussion on the distributive effects of contract regulation mainly takes up the question of redistribution between the legal classes which the parties represent - “the class of sellers” v. “the class of buyers” or “landlords” v. “tenants” - see the impressive analysis by Kennedy 1982, esp. p. 609 ff. The focus here, however, is on the redistribution within those groups.Google Scholar
  12. 13.
    Ewald 1986 p. 45. See also ibid. p. 46: “Social law is... a law of positive discriminations”.Google Scholar
  13. 15.
    Schmidt 1980, especially p. 157 ff.Google Scholar
  14. 16.
    Briiggemeier 1982 p. 69 f.Google Scholar
  15. 17.
    See Wiethölter 1982, 1984, 1986 and 1989.Google Scholar
  16. 18.
    Wiethölter 1982 p. 45.Google Scholar
  17. 19.
    Wiethölter 1989 p. 509. Thus also Wiethölter 1986 p. 246.Google Scholar
  18. 20.
    See e.g. Reich 1984 p. 280.Google Scholar
  19. 21.
    Thus e.g. Hart 1984 p. 75.Google Scholar
  20. 22.
    Teubner 1984 p. 91 f.Google Scholar
  21. 23.
    See e.g. Reich 1984 p. 280f, Hydén 1984 p. 43 and Pöyhönen 1985 p. 134. See also Rottleuthner 1986 whose general criticism of theories of legal evolution is that, having too much of a selective empirical base, they simplify reality. “The price for the elegance of a model of evolution is a partial fade-out” (p. 226). Opposed to such a view is e.g. Dalberg-Larsen 1986 p. 13 f.Google Scholar
  22. 24.
    Teubner 1986 p. 321.Google Scholar
  23. 25.
    See also Tonner 1985 p. 118.Google Scholar
  24. 26.
    Teubner 1986 p. 301.Google Scholar
  25. 27.
    Reich 1984 p. 271.Google Scholar
  26. 28.
    The question is based on the popular assumption that the welfare state is undergoing a “crisis”. A general assumption like this is questionable. In an extensive investigation of the challenges of the welfare state and the Nordic models, Pekka Kosonen (1989) has not found strong support for such an assertion of crisis (p. 323). The social problems that have arisen are connected with general problems of accumulation and capitalization, not with the welfare state as such. See also e.g. Friedman 1986, who links the welfare state with deep changes in legal culture and therefore perceives its core as “remarkably solid, remarkably hard to change” (p. 20).Google Scholar
  27. 29.
    Wiethôlter 1984 p. 32.Google Scholar
  28. 30.
    Reich 1984 p. 283.Google Scholar
  29. 31.
    Briiggemeier 1980 p. 72.Google Scholar
  30. 32.
    Eriksson 1980 p. 108 f.Google Scholar
  31. 33.
    Mathiesen 1985 p. 12 ff. See also Unger 1976 p. 199.Google Scholar
  32. 35.
    Hart 1984 p. 72 ff.Google Scholar
  33. 36.
    I.e. what Reich 1977 p. 198 calls “marktkomplementäre Konzeptionen eines Verbraucherrechtes”. Briiggemeier 1983 p. 389.Google Scholar
  34. 38.
    Teubner 1983 p. 275.Google Scholar
  35. 39.
    Teubner 1983 p. 277.Google Scholar
  36. 40.
    Hart 1984 p. 75.Google Scholar
  37. 41.
    See e.g. Hart 1984 p. 76.Google Scholar
  38. 42.
    See on private law Teubner 1983 p. 276 ff.Google Scholar
  39. 43.
    Blegvad 1988 p. 162 ff. has analysed the Danish consumer complaint board (Forbrugerklagenaevnet) as an example of reflexive law.Google Scholar
  40. 44.
    See e.g. Eriksson 1986 p. 287.Google Scholar
  41. 45.
    Habermas 1981. See also Habermas 1986.Google Scholar
  42. 46.
    Teubner 1983 p. 274.Google Scholar
  43. 47.
    Teubner 1983 p. 278: but cf. p. 275: “law must act at the Subsystem-specific level to install, correct, and redefine democratic self-regulatory mechanisms”.Google Scholar
  44. 48.
    See also Reifner 1980 p. 377.Google Scholar
  45. 49.
    Cf. Habermas’ (1986 p. 209) example of negative effects of a social-law colonization of the life-world: individualization such as “the individualizing definition of geriatric care... has burdensome consequences for the self-image of the person concerned”.Google Scholar
  46. 50.
    See also Tonner 1985 p. 121.Google Scholar
  47. 51.
    See e.g. Reich 1984 p. 283 f. and Graver 1988 p. 105 ff. Teubner is also aware of this. In his original contribution he touches upon the problem of power, albeit briefly. A kind of “simulation” of genuine reflexive processes is expressly recommended as a solution in cases where “social asymmetries of power and information can resist institutional attempts at equalization”, see Teubner 1983 p. 277. See later also Teubner 1986 p. 317 f.Google Scholar
  48. 52.
    As portrayed by certain of the advocates of reflexive law; see for example Hydén 1984 p. 42.Google Scholar
  49. 53.
    See also Eriksson 1986 p. 286.Google Scholar
  50. 54.
    A key term here is “Rechtsversagen”, see e.g. Reich 1984 p. 272 ff.Google Scholar
  51. 55.
    Hart 1984 p. 77 ff.Google Scholar
  52. 56.
    As Bayles 1987 p. 2 puts it: “Although legal decisions can sometimes lead to rather sweeping changes... courts do not have the power simply to institute a comprehensive no-fault accident insurance scheme.”Google Scholar
  53. 57.
    See Eriksson 1980 p. 108 ff. The same theory was presented, with a somewhat different terminology, in Eriksson 1979.Google Scholar
  54. 58.
    Cf. also Unger 1976 p. 212: “In private law, substantive justice will be preoccupied with the elaboration of criteria for determining the equivalence of performances exchanged through contract and for allocating the losses arising from private disputes on the basis of both comparative fault and relative need” (italics mine). Google Scholar
  55. 59.
    Teubner 1986 p. 318.Google Scholar
  56. 60.
    In Teubner’s, 1983 p. 277 f., words: “This means that, in the case of ‘interaction deficiencies’ between contracting parties, objective purposes and duties are defined authoritatively by virtue of law; in the case of ’market deficiencies’, commercial customs are replaced by the judicial definition of market behavior rules; and in the case of ’political deficiencies’ the judicial process defines standards of public policy.”Google Scholar
  57. 61.
    See e.g. Klindgen 1981 pp. 135, 144.Google Scholar
  58. 62.
    See also e.g. Peter Derleder 1982 p. 222 who, when establishing “Sozialiserung der Bedürfnisse” (socialization of needs) as a goal for the development of private law, uses “needs” in a relatively broad sense. For Derleder, socialization of needs consists of three elements: limiting the struggle for profit, internalizing general costs into private calculus and overcoming existing ghetto delimitations. Some of the needs mentioned by Derleder are, however, person-related. This is the case with the example concerning the obligation of the advocates to assist poor clients according to a lower social tariff (p. 223).Google Scholar
  59. 63.
    See in more detail e.g. Unger 1983 p. 616 ff., Collins 1986 p. 8 ff., Kennedy 1976 p. 1717 ff., Joerges 1989 p. 608 f., 622.Google Scholar
  60. 64.
    The users of those concepts do not themselves necessarily interpret them in this way. See e.g. Kennedy 1982 p. 584 who points out that a change in a rule “in the direction of greater altruistic duty does not mean that the rule promotes more equal distribution between groups”.Google Scholar
  61. 65.
    Unger 1983 p. 638, in testing his vision on the law of mistake, expressly mentions as one of the criteria to be taken into account, “the relative ability of the parties to bear the loss.” Or in the words of Collins 1986 p. 12: “In the modern law we look more closely at the comparative wealth and knowledge of the parties before we judge the legitimacy of the relation of power established between them.” (present author’s italics).Google Scholar
  62. 66.
    This criticism has been given me by Udo Reifner in a very detailed letter as a response to an essay of mine presenting some of the main ideas of the present work (Wilhelmsson 1987b).Google Scholar
  63. 67.
    That this discretion is not unlimited and may vary in extent will be explained in VIII.2.4.Google Scholar
  64. 68.
    BGB-Kommentar p. 34 ff. See also Esser - Schmidt 1984 p. 11. In a later analysis Teubner sees the general clause as “a collision rule for intersystemic conflicts”, which permits legal synchronization of the various demands placed upon a contract from the “interaction level”, the “institutional level” and the “societal level”: see Teubner 1989 p. 422 f.Google Scholar
  65. 69.
    See Mathiesen 1985.Google Scholar
  66. 70.
    Unger 1976 p. 206 ff. See also e.g. Broekman 1986 p. 87: “the dogmatic character of law could be rejected in favor of solidarity”.Google Scholar
  67. 71.
    See also Tuori 1988 p. 197 f. who sees the relationship between material and formal rationality in this way.Google Scholar
  68. 72.
    See e.g. Bruun - Wilhelmsson 1983 p. 707 ff.Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 1992

Authors and Affiliations

  • Thomas Wilhelmsson
    • 1
  1. 1.Department of Private LawUniversity of HelsinkiFinland

Personalised recommendations