Reflections on the Pactum in the Public and Private Spheres

Abstract

This chapter delves into the nature of the pactum as both substantial and functional bond as well as mythical canon of any contractual-constituting initiative in the public and private spheres. The aim is to show that the movement toward the conceptualisation of good faith as an organising principle and implied term in the Common law tradition is due to the need to counterbalance our inhuman condition as made it manifest by the humanitarian façade of the modern constitutional project. This claim is supported by an unconventional method of investigation that will promote the comparison between the role of political action at the public level and the increasing utilisation of the doctrine of good faith in Contract law theory and practice.

Hayek the Schmittian: contextualising Cristi's account of Hayek's decisionism in the age of global wealth inequality

“…Instead of opting for an 'intangible' post-human and yet political ethics 118 whose essence lacks coherence and certainty from a juridical point of view, 119 we urgently need to develop new perspectives on law's social significance while also arguing against the instrumental view of liberal law and society scholars. 120 The contextualised rediscovery of the crucial distinction between social rules and legal norms, 121 and thus of the essence of the institutionalising processes that render law properly legal within normative discourse and power theory, is a key component of this neorealist challenge against the liberal form of 'domination'.…”