Progress in EU contract law

Abstract

This article aims to contribute to the elucidation of the philosophical foundations of EU contract law through a critical discussion of different understandings of progress and their respective implications. Claims about progress and regress invariably refer to a normative or evaluative standard. Such standards, it is usually understood, allow us – backward-looking – to take stock and to determine how much progress (in our case) EU contract law has made, and provide us – forward-looking – with a sense of where (in our case) EU contract law should be going. Therefore, the core normative question in this contribution is: what if anything should count as progress in EU contract law? The article, first, examines understandings of progress that are immanent to EU contract law or to EU constitutional law, in particular the specific aims of directives and the various more general constitutionalised objectives. It, then, moves on to consider external standards for progress that have been suggested in the literature. These standards typically rely either on a teleological conception of the common or individual private law good, such as efficiency and self-authorship, or on a deontological conception of private law right, notably interpersonal and social justice. Subsequently, the article confronts recent post- and decolonial critiques of the very idea of progress and their implications for EU contract law and its study. Finally, it argues for a self-critical reflexive stance towards progress in EU contract law, grounded in a strong commitment to moral and epistemic equality, which requires overcoming unilateral universalisms.