Between Facts and Norms - Contributions to a ... - Blogs Unpad

404Chapter 9relationships from an observer point of view. This shift is evident inthe consideration of de facto contractual relations, the duty ofsuppliers to enter contracts for the delivery of essential goods andservices, safeguards on good faith, the doctrines of mistakenintention and positive breach of contract; it is especially clear in thecontrols imposed on framing and entering into contracts, as well asin the corresponding obligations to provide information andadvice and to exercise due care. As in the case of property law, here,too, the declared purpose of the regulations is to provide compensationfor "market failure" to those in weaker market positions(employees, tenants, consumers, etc.). Typical conditions of goodfaith, self .. binding commitments, obligations to fulfill a contract,and so on, are understood as social-welfare protections. As materializedin this way, contract law no longer allows the "rightness" ofcontractual terms to depend entirely on the fiction of the freedeclaration of intention linked with the freedom to enter intocontracts. Even the "law that governs entry into contracts belongsto that part of private law that adjusts for systemic advantages anddependencies. This compensatory law does not rely on the fictionthat the subjects entering into the contract are equal, but insteadmakes structural advantages in information, power, and authorityaccessible to empirical analysis and legally binding evaluation."29I mention the above as examples of the further development oflaw initiated primarily in the adjudication process. These examplesare relevant here because of their underlying premises, whichreveal a changed perception and interpretation of social processes.Statutory limitations on property, as well as judicial interventionsinto the framing and concluding of contracts, seek to compensatefor asymmetries in economic power positions. 30 The principle of anequal opportunity to exercise liberties is used to justify this goalboth critically, with reference to a rejected social model (marketfailure), and constructively in view of a new model, that of thewelfare state. This new background understanding has two components:on the one hand, there emerges the image of an increasinglycomplex society of functionally specified domains of action thatpush individual actors into the marginal position of "clients,"handing them over to the contingencies of independently operatingsystems. On the other hand, there is the expectation that thesecontingencies can be normatively domesticated with the deploy-