The dogmatic foundations of the market (comments illustrated by some examples from labour law and social security law)

Abstract

This paper analyses the legal foundations of a market order in which informal contracting plays the central role. It charts the development of a 'contract culture' across the global economy and the dominance of contract as the appropriate way of analysing relationships in society. It then turns to examine the legal pre-conditions for an effective law of contract, in particular recognition of the legal force of informal promises. The author traces the development of this notion from Roman law, which never accepted it, through mediaeval canon law which did, to the role of the state in modern societies as the guarantor of promises. Finally, the article examines the tensions to which globalisation has subjected the state guarantee in modern times and analyses the hybrid forms which have resulted from the use of contract to govern relations previously wholly subject to public rather than private ordering.

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