PLRG Public Seminar: On the Doubly-Constitutionalizing Character of European Contract Law by Associate Professor Michael Dowdle

PLRG held our second public seminar, “On the Doubly-Constitutionalizing Character of European Contract Law” on 14 December 2021 with Associate Professor Michael Dowdle as the keynote speaker.

This essay explores a distinctive constitutional aspect of contract law.  It argues that contract law not only contributes to the constitution of the state, itself a contentious proposition, but that it is ‘doubly-constitutionalizing’ in that it also contributes to what might be thought of as the ‘constitutionalization’ of the market.  These two distinct constitutional functions cause jurisprudential problem of the kind that Gunther Teubner has termed a ‘regulatory trilemma’. Traditionally, domestic courts in continental Europe have addressed, or at least massaged, trilemmatic instances arising from the doubly-constitutionalizing character of contract by aggressive use of the principle of ‘good faith’.  But this has not been without its problems.  Recent, domestic, civil law courts in the EU have started exploring another option, that of referring trilemmatic issues to the Court of Justice of the European Union (CJEU). This has proved effective, due to distinctive features of the EU’s ‘constitution’.  The essay concludes by suggesting what lessons this success might hold for state-constitutional systems in general.