What is Normative Theory?

• 1 Introduction

  In Justifying Contract in Europe, Martijn Hesselink makes an extraordinary effort to shed light on certain basic, fundamental questions of European contract law from the perspective of leading normative political philosophies. In this short contribution I will focus on a limited aspect of the book, namely on what the author designates as ‘normative political theories’. The question this contribution hopes to answer, or in fact, hopes to raise, rather than to answer in any definite and conclusive manner is ostensibly simple and straightforward: what is normative theory? And: how (un)problematic is the conception of normativity Hesselink appears to adopt in his book? Here, at the start of this short comment, it is important to note that the potential concerns I may have with Hesselink’s conception of normative theory as adopted in Justifying Contract in Europe by no means detracts from the otherwise important and rich insights the book has to offer.

  Hesselink’s turn to normative private law scholarship is a bold step, and, in my opinion, a timely and important one as well. As Hesselink observes, many contemporary legal scholars seem to shy away from normative theory, as they consider it as either too abstract or as having little practical use for the pressing legal questions our societies face today. Yet, even if unfashionable and seemingly abstract, it remains of utmost importance to continue to ask normative questions – and ask for justifications – about the legal and socio-political institutions that govern our daily lives; and (European) contract law is certainly one of them. As Hesselink explains, each normative order always comes with a level of coercion, and as coercive normative orders they call for justification. Moreover, not only does normative theory help us to articulate and provide justifications for coercive normative orders, such as (European) contract law, it also allows us to engage in a continuous exercise of critique. As an exercise of critique, we can ask questions, such as: is it possible to think of contract law differently, and, perhaps, imagine a more just, and more egalitarian contract law as compared to the world – and the contract laws within it – we inhabit today?

  As regards the so-called ‘leading contemporary political theories’, Hesselink limits his discussion to six strands of political philosophy: utilitarianism, lib­eral-egalitarianism, libertarianism, communitarianism, civic republicanism, and discourse theory. These theories are of great importance to present-day legal-philosophical discourses. However, and as Hesselink also frankly admits, this limitation is somewhat arbitrary, such as every limitation unavoidably is. And even though unavoidably arbitrary, limitations of some sort are also necessary to talk sensibly.

  In what follows, it is important to keep in mind that the concerns I have with Hesselink’s conception of normative theory do not directly regard his limitation of the inquiry to the six theories mentioned above. In other words, I have no problems with limitation as such. What I want to call into question, however, are some of the reasons Hesselink offers for excluding certain political philosophies from the scope of his book, specifically when he excludes them on the basis that he considers them non-normative, or worse: hostile to normative questions and approaches. This begs the question: what is normative theory? As Hesselink appears principally committed to reason-giving, justifications, and the ‘unforced force of the better argument’, the reasons for excluding certain strands of political philosophy matter. What is more, these reasons may (indirectly) point us to the understanding of normative theory that Hesselink adopts in Justifying Contract in Europe.

  In this context, Hesselink’s explicit exclusion of two political theories warrants our special attention. First, Hesselink excludes feminism because he does not regard it as a sufficiently unified political theory. According to Hesselink, there is simply too much disagreement amongst feminists to speak of a single theory:

  ‘While there is no doubt that some of the most prominent contemporary political philosophers are feminists it is not clear that feminism is best understood as a single political philosophy. Many of these theorists self-identify at least as much as liberal-egalitarians (focusing on rights), discourse-theorists (rethinking the public sphere), or communitarian [sic] (advocating identity politics) as they are outspoken feminists.’¹x Martijn W. Hesselink, Justifying Contract in Europe: Political Philosophies of European Contract Law (Oxford: Oxford University Press, 2021), 7.

  For this reason, Hesselink opts for integrating feminist insights – to the extent relevant to the purpose of his book – in his discussion of the main ‘six leading political theories’, rather than discussing feminism as a self-standing leading political theory in its own right. A second political theory Hesselink expressly excludes from the scope of his project is Marxism. Different from the case of feminism, his problem with Marxism is not so much its perceived heterogeneity, but rather that it is non-normative, or worse: an enemy of normativity. As Hesselink puts it: Marxism ‘would fundamentally reject the normative focus on justice, rights, and reasons adopted in this book’.²x Hesselink, Justifying Contract in Europe, 8.

  As a tentative response, this article submits that the critical inclination of both feminism and Marxism does not (necessarily) defeat their normative orientation. To the contrary, I dare to say: their critical aspect is their normativity. Hesselink’s rejection of feminism and Marxism, however, does not stand on its own but is indicative of a more profound difficulty with his conception of normative theory, which rests on a problematic distinction between normativity and critique. Even if it were possible to (analytically) distinguish between normative theory (moral philosophy) and critique – which to me appears still an open question – then I still believe that this separation leaves us with an eviscerated understanding of both normativity and critique. Is this a price we are willing to pay?

• 2 Heteronomy and Emancipation

  As we have already seen above, Hesselink’s core reason for excluding feminism is that he does not regard it as a sufficiently homogenous theory. This is not because he thinks that feminism is irrelevant. To the contrary, he fully acknowledges the importance of feminist thinking for political questions of European contract law. Nevertheless, instead of discussing feminism as a separate and independent political philosophy, he discusses feminist insights only under the headers of what he conceives as the six leading contemporary normative political theories. As Hesselink explains:

  ‘the political ideas and critique on subjects such as domination (patriarchy), intersectionality, commodification, and the boundary between public and private spheres – that are highly relevant to (European) contract law, as we will see – will be discussed here not from a singular feminist normative point of view, but rather from the perspectives of the various feminist strands in normative political and legal theory.’³x Hesselink, Justifying Contract in Europe, 7.

  To be frank, I felt somewhat uneasy when I first read this passage. Elsewhere in this special issue, Lyn Tjon Soei Len gives a powerful critique of Hesselink’s exclusion of feminism, (in her case) specifically from the perspective of intersectional feminist theory. My point here resounds her critique, but for the purposes of the present contribution I want to insist that feminism – or feminisms (in the plural) – is an independent normative political philosophy in its own right. In other words, I do not deny that there exist strong disagreements amongst feminists. Yet, and despite these many points of disagreement and fierce debates, feminist thinkers self-identify as feminist, first and foremost, and this self-identification carries normative force. To say otherwise, to strip them from their common denominator (‘feminist’), and to identify them by their adjectives instead (e.g., ‘liberal’, ‘cultural’, ‘socialist’, etc.) appears to me almost as an act of aggression. Part of this objection is politically motivated, as it breaks down the feminist capacity for action – their capacity to join forces. However, I believe that there is also something else at stake. If I say: ‘I am a feminist’, then who are you to say: ‘Well, actually you are a liberal’ (‘libertarian’, ‘communitarian’, and so on)? Am I mistaken in my self-identification? Do you want to save me from my misguided self-understanding? If so, are you not effectively committing an epistemic injustice?⁴x Hesselink, Justifying Contract in Europe, 281, footnote 39. Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing, Epistemic Injustice (Oxford: Oxford University Press, 2007).

  To be sure, Hesselink by no means intends to commit an epistemic injustice. He emphasizes throughout the book that his focus is on reasons, not on their proponents:

  ‘The aim [of this book] is emphatically not to put people into boxes, labelling legal scholars as communitarian, etc. That would be wholly misguided. First, because it would be not only hazardous but also disrespectful to attribute political identities to others. Secondly, such labels would be based on an unwarranted assumption that the scholar at hand is a monist, and, moreover, has a consistent political view over time (which is not necessarily a merit, be it in academia or in politics).’⁵x Hesselink, Justifying Contract in Europe, 439.

  It is beyond the scope of the present article to scrutinize the relationship between the presumed (self-) identity of the speaker and the political-philosophical nature of the arguments they advance.⁶x This is not to say that I defend identity politics. Quite the contrary, I have significant issues with identity politics. Moreover, I agree with Hesselink that identities are not fixed; more strongly even: our identities appear fragile, conflicted, and our views and convictions can certainly change over time. Whilst accepting all that, our (fragile and conflicted) identities still hang together with the utterances we make. If I say: ‘I am a feminist’, and I also mean what I say, this saying – in a way – also constitutes me as feminist. In sum, what is at stake is the performative relationship between the subject and its utterances. This performative relationship involves a form of self-making – a self-making, however, which is never fully self-inaugurated as this process of self-making takes place through norms and language that are, no doubt, already in place. However, if we accept – for the sake of the argument – that it is possible to (analytically) separate the arguments from the proponents who advance them, then still the subsumption of feminism onto what Hesselink describes as the main leading contemporary political theories appears to me highly problematic. Subsumption is in a way always a form of subjugation.⁷x Theodor W. Adorno, Negative Dialectics, trans. E.B. Ashton (London; New York: Routledge, 1990). In this specific context, it reinforces the narrative of dependency and heteronomy of feminist [feminine?] thought vis-à-vis other, more important, grander, and let us call them – for convenience’s sake – masculine schools of thought. This is not innocent, both on a rhetorical (political) as well as a substantive level. Rhetorically, it denies feminism its own agency, its autonomous place in the architecture of normative political philosophy; substantively, this subjugation limits the possible feminist voices in the book. Insofar as the book aims to create space for reasons so far ‘unheard of’⁸x Hesselink, Justifying Contract in Europe, 14; Hesselink, Justifying Contract in Europe, 282. Rainer Forst, Normativity and Power: Analyzing Social Orders of Justification (Oxford, New York: Oxford University Press, 2017), 5. this latter point seems to me particularly problematic.⁹x See also Lyn Tjon Soei Len’s contribution in this special issue.

  As regards this last point, let me illustrate this with one example. In Chapter 7, entitled ‘Public Policy and Good Morals’, Hesselink incorporates certain feminist perspectives in his discussion on the moral limits of the market. By using feminist arguments in this fragmented and disintegrated fashion, however, I believe we miss out on some of the most important insights of feminist thinking (understood as a normative political theory in its own right). No doubt there is strong disagreement amongst feminists as to which goods and services ought to be for sale, and which of them not. Nevertheless, it seems to me that the significance of feminist thinking for normative questions on European contract law is not so much found in the specific answers feminists offer as to the question on contested commodities – a question which indeed strongly divides feminists, rather than unites them. That being so, what the different strands of feminism seem to unite is a direction of thought. And this perspective is far more foundational and radical: it points to the ways in which modern contract laws enable and effectuate the separation between the contractual and the non-contractual sphere, the home and the market – and, what is more, prioritize the market, at the same time as they mark the home, and the women within it, as inferior.¹⁰x See Hila Keren, ‘Feminism and Contract Law’, in Research Handbook on Feminist Jurisprudence, eds. Robin West and Cynthia G. Bowman (Cheltenham: Edward Elgar, 2019), 406-426. Of course, Hesselink is right to observe that questions of commodification and market-alienability (versus market-inalienability) are not reducible to the distinction between the contractual and non-contractual divide. At least in civil law jurisdictions, donations are in fact recognized as legally binding contracts. At the same time, the legal order still tends to look upon donations with a certain degree of suspicion, at least as compared to ‘ordinary’ bilateral contracts (‘proper market exchanges’). Following the ‘logic of the market’, the legal order seems to ask itself: why is someone willing to bind themself without asking anything in return? This differential treatment of gifts vis-à-vis bilateral contract is only meant to show how contract law, including contract laws that generally recognize gifts as enforceable contracts (such as contract laws in continental Europe), are crucial in structuring the separation between market and non-market transactions (often the ‘feminine’ sphere; the sphere of selflessness). See Hesselink, Justifying Contract in Europe, 340-341.

  To conclude this subsection, allow me to make two remarks. First, note that feminist critique is not ‘merely’ critical – what could perhaps be termed vulgar criticism – but has an important normative dimension to it as well. Feminists do of course not content themselves with merely pointing a finger at the ways in which different contract laws prioritizes the male point of view (however defined). With an approving nod to Marx, the point is not merely to interpret contract law; the point is to change it. Second, whilst feminist perspectives are certainly compatible with other political philosophies, such as discourse theory and a proceduralist conception of democracy,¹¹x Hesselink, Justifying Contract in Europe, 132. I think it is important to not immediately assimilate and subordinate feminism to such theories. Whilst both may call into question the naturalness, timelessness, and/or inevitability of the public-private divide, the market-home distinction, or the separation between the contractual and the non-contractual sphere, feminist jurisprudence has its own unique perspective, and cannot be assimilated and subordinated onto other political theories without significant loss.

• 3 Critique and Normativity

  The second theory Hesselink explicitly excludes from the book is Marxism. Whilst Hesselink does not explicitly raise this concern in his discussion of feminism, a similar reproach seems to animate his exclusion of both Marxism and feminism: they merely criticize and do not provide any constructive answers to normative questions of European contract law. What is at stake is nothing less than the relation between critique and normativity.

  Note that Hesselink does not reject critical theory in its entirety. Quite the contrary, he regards himself a critic, and insists that his project is critical in (at least) two respects: first, in the sense that it assesses the strengths of normative arguments on their own terms (immanent critique); and second, in the sense that it tests them ‘on the basis of pertinent arguments deriving from other political theories (external critique)’. Nevertheless, the book also differs from what we would normally term critical theory: ‘[The book’s] … critical stance differs from the more radical, foundational critique coming from critical legal studies, much of which is fundamentally sceptical with regard to normative theory and the power of reasons.’¹²x Hesselink, Justifying Contract in Europe, 11. I think I understand where Hesselink comes from, and, in a way, I sympathize with his critique of such forms of critical theories. We may term them reductively relativist or even ruthlessly (and bluntly) nihilist. To my mind, however, most critical theories are not that callous and reductionist.

  Notwithstanding the critical aspects mentioned above, Hesselink makes clear that the book’s focus is on normative questions of European contract law. This limitation is also fair enough. My concern, however, regards what appears implied in the making of this limitation. As I read it, this limitation rests on the (implicit) assumption that critique and normative theory are two distinct enterprises. Or, if not fundamentally distinct, the two are at least analytically separable. Hesselink also says this with so many words, when he writes:

  ‘Any amount of insight, however meaningful and eminently relevant for politics, about how reason and reasons are constructed and based on power relationships, does not make the practical questions about what to do, and in particular the evaluative question of what it would be best to do and the normative question of what we ought to do, go away. We still have to decide what, if anything, we as a society ought to do about – in our case – European contract law.’¹³x Hesselink, Justifying Contract in Europe, 445.

  My concern with separating critique from normativity is that it suggests an unduly and unnecessarily narrow conception of critique, as if critique were reducible to mere fault-finding.¹⁴x See Raymond Williams, Keywords: A Vocabulary of Culture and Society (Oxford: Oxford University Press, 1985), 85-86. No doubt this is a popular critique of critique:¹⁵x Compare also the relatively popular but commonplace critique of the ‘radicalness’ of youths. Especially older people tend to criticize and scold the ‘protest culture’ of teens and adolescents for only saying ‘no’. The critique, then, is that these ‘radicals’ merely criticize, and refuse to provide positive answers or constructive alternatives to the things they criticize. Note that these ‘critiques of critiques’ are often profoundly imbued by conservatism. Think only of the popular quote (wrongly attributed to Winston Churchill) that says: ‘If you are not a liberal at 20, you have no heart. If you are not a conservative at 40, you have no brain.’ the reproach that it functions only negatively and does not offer any positive and constructive guidance as to how to move forward.¹⁶x Of course, even in this narrow conception, which reduces critique to fault-finding, the relationship between critique and normative theory is complex. Norms and normativity already play a role in fault-finding: we typically find a certain ‘fault’ with reference to a normative benchmark. From this, some authors – including Hesselink, so it seems – have drawn the curiously uncritical conclusion that a move beyond critical theory is required in order to make normative judgements about politics and law (in the case of Justifying Contract in Europe: European contract law). To my mind, however, critique is not only destructive; it is (also) productive. Critique is not only, nor even primarily, a judgment, but a continuous and never-ending practice – a practice which is intrinsically and inseparably linked to normativity: it is both normatively motivated and normatively oriented.¹⁷x Note that both Foucault and Butler often speak of ethics, rather than morality. However, following Habermas, Hesselink strictly separates moral discourses from ethical discourses. To Hesselink, ‘moral discourses refer to the universal duties that all human beings have towards each other, [whereas] ethical discourses refer to values, traditions, and identities with a view to determining what to do in order to live a meaningful and authentic life.’ In Hesselink, Justifying Contract in Europe, 51. In this, I draw on the later work of Foucault, and Foucaultian-minded thinkers, such as Judith Butler. As Judith Butler summarizes Foucault’s conception of critique: ‘critique is precisely a practice that not only suspends judgment … but offers a new practice of values based on that very suspension’.¹⁸x Judith Butler, ‘What Is Critique? An Essay on Foucault’s Virtue’, in The Political: Readings in Continental Philosophy, ed. David Ingram (London: Basil Blackwell, 2002), 212.

  In the last years before his death, Foucault worked on a genealogy of the critical attitude. It is in this context that he came to associate critique with virtue – or, as he put it rather boldly: ‘in a certain way, … the critical attitude [is] … virtue in general.’¹⁹x Foucault: ‘There is something in critique that is related to virtue. And in a certain way, what I wanted to speak to you about was the critical attitude as virtue in general.’ In Michel Foucault, ‘What Is Critique?’, in What Is Enlightenment? Eighteenth-Century Answers and Twentieth-Century Questions, ed. James Schmidt, trans. Kevin Paul Geiman (Berkely and Los Angelos: University of California Press, 1996), 383. Foucault does not use virtue here in any ‘thick’ Aristotelian or communitarian sense. Rather, he elaborates his understanding of virtue and critique in stark opposition to authoritarian ethical philosophies that issue a set of prescriptions and prohibitions, to which the subject has to mechanically submit.²⁰x Compare in this context also Hesselink’s critique on monistic contract theories that are based on one or only a limited set of ultimate values or ultimate truths. Others have described such theories as ‘Euclidian theories’, which use a small number of apex principles from which the entire system of contract law logically follows. See: Shivprasad Swaminathan, ‘Mos Geometricus and the Common Law Mind: Interrogating Contract Theory’, The Modern Law Review 82, no. 1 (2019): 46-70. Critique, then, is resistance to subjugation and subjectification, or the ‘art of voluntary inservitude, of reflective indocility’.²¹x Foucault, ‘What Is Critique?’, 386.

  Of what consists this virtue then, this morality, which Foucault, and Butler after him, have come to associate with the critical attitude? In keeping with the Kantian project, critique regards the practice of questioning and exposing the limits of our most sure ways of knowing, which some also have referred to as our ‘uncritical habits of mind’.²²x Compare the term ‘dysconsciousness’ which gained prominence in the 1990s. Dysconsciousness has been defined as the ‘uncritical habit[s] of mind (including perceptions, attitudes, assumptions, and beliefs) that justifies inequity and exploitation by accepting the existing order of things as given.’ E.g., in: Joyce E. King, ‘Dysconscious Racism: Ideology, Identity, and the Miseducation of Teachers’, The Journal of Negro Education 60, no. 2 (1991): 135. As Butler explains this: the reason for driving to the limits of thinking is not just because we are seeking a ‘thrill of experience, or because limits are dangerous and sexy …’ The reason is that we have already run up against a crisis in thinking. She continues:

  ‘The categories by which social life are ordered produce a certain incoherence or entire realms [sic] of unspeakability. And it is from this condition, the tear in the fabric of our epistemological web, that the practice of critique emerges, with the awareness that no discourse is adequate here or that our reigning discourses have produced an impasse. Indeed, the very debate in which the strong normative view wars with critical theory may produce precisely that form of discursive impasse from which the necessity and urgency of critique emerges.’²³x Butler, ‘What Is Critique? An Essay on Foucault’s Virtue’, 215.

  Where does all of this leave us with regard to normative questions of European contract law? One may well object that this conception of critique offers little concrete normative guidance. Yet, reassurance and ready-made answers was perhaps also not its primary aim. The notion of critique as sketched above is perhaps rather abstract, but I nonetheless believe it has potentially a lot to offer. As every normative order, (European) contract law establishes its own epistemological and ontological horizon. It has its own ‘politics of truth’, to put it in the Foucaultian lexicon: it circumscribes in advance what will and will not count as truth, what forms of subjects and conduct can appear within its ontological and epistemic horizon – that is, what are the possible and veritable subjects of contractual governance, and are thus also regulated and regulatable, and, conversely, who and what fall outside of its scope, and are precluded from appearing on the contractual stage, in part or altogether. In other words, the structuration and delimitation of the contractual field has profound normative consequences: it determines who can appear as a contractual subject, what forms of conduct are possible, and who and what will receive legal recognition and protection accordingly.

  To be sure, interrogating and exposing the limits of the contractual field is not to say, without more, that its power is illegitimate. Contract law establishes a mode of subjectivation, no doubt, but this subjectivation also enables us to act qua contractual subjects. By driving to the limits of the epistemological and ontological field, we perhaps risk our intelligibility as contractual subjects, but this risk of deformation also allows us to pose the question anew: who counts as subject? And: what forms of action are possible? What are the values that set the stage for action? These are important questions to any critical inquiry into normative matters. Asking after such limits is not merely important as a preparation for normative inquiries. Following Foucault and Butler I dare to say that something more profound is at stake: risking the established order is an exercise in virtue itself.

• 4 Concluding Reflections

  This contribution problematized one specific aspect of Hesselink’s rich and thought-provoking book. The question it asked was treacherously simple: what is normative theory? And whilst the question appears perhaps simple and straightforward, it proved far more difficult to answer it in any definite or conclusive manner. As an approximation of an answer, as a first tentative finding, or merely as a direction for further thinking, I tried to make the case that critique and normativity (moral philosophy) are intimately related – in fact inseparable – and that one without the other effectively eviscerates both. I concede that for analytical purposes it is sometimes convenient to distinguish between the two, but what I hope the present contribution has shown is that nothing within our conception of critique, properly understood, (nor within our conception of normative theory, for that matter) compels this separation. What the discussion of feminism aimed to show more concretely, and the discussion of the Foucaultian conception of critique more abstractly, is that critique is intrinsically normatively motivated as well as normatively oriented. Critique thus understood is indeed a practice of virtue.

  In his book Hesselink approvingly quotes Benhabib that ‘the struggle to make something public is a struggle for justice’.²⁴x Hesselink, Justifying Contract in Europe, 132; Seyla Benhabib, ‘Models of Public Space: Hannah Arendt, the Liberal Tradition and Jürgen Habermas’, in Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (Cambridge: Polity Press, 1992), 94. It appears to me that ‘the struggle to make something public’ is precisely the practice of critique. Moreover, this ‘struggle to make something public’ is not normatively neutral. To the contrary, the struggle to make something public is a struggle for justice. With a specific eye to (European) contract law, the practice of critique involves a radical inquiry into the ways in which contemporary contract laws enable the formation of certain subjects and certain forms of action, whilst foreclosing others; it aims at exposing the limits of the different forms of subject-formation and agency that the contractual order sanctions, disciplines, and facilitates. In a word, critique means asking after the limits of contractual recognizability: which subjects and actions, whose interests and what values, does contract law recognize and protect? And: which subjectivities and which forms of action, whose interests and what values, are relegated to the margins of the contractual field, thus eclipsing contractual recognition and protection, in part or altogether?

  Critique always involves risk-taking; questioning the established legal-contractual order is in a way risking it. And by risking the established order we stake ourselves: we risk our potential recognizability as contractual subjects. The critical question is thus: within our contemporary legal-contractual order, what might I be and what might I do? These forms of critical inquiries allow us to open up spaces for new forms of action and the forging of new forms of subjectivities. And it is in this way that we can make room for more democratic and egalitarian norms of recognition. It is precisely here, by occupying the ontologically and epistemologically insecure position at the limit of the contractual-legal field, that reasons may emerge that are previously ‘unheard of’.²⁵x Hesselink, Justifying Contract in Europe, 14, 282; Forst, Normativity and Power, 5.

  To conclude, perhaps the greatest insights of Justifying Contract in Europe – and its greatest achievements – stem from its ambition ‘to open up the political debate on European contract law’. The politicization of (European) contract law asks for a radical questioning of our most sure modes of contractual-legal thinking and reasoning – that is, a radical inquiry into the things we take for granted within contractual discourse. Normatively, this urges us to listen to the voices and contestations of those at the fringes of the contractual field, to the words uttered by those who eclipse contractual recognition and protection, or occupy only a marginalized position within the (European) contractual-legal order. In a word, the book invites us to listen to those at ‘the periphery’ – a spatial metaphor, which these days is painfully topical and pressing in view of the current war raging at the borders of Europe, which exposes people living in this ‘periphery’ at a heightened risk of injury, illness, starvation, displacement, and death.²⁶x Cf. Judith Butler, Frames of War: When Is Life Grievable? (London; New York: Verso, 2009). If struggling against subjection and subjectification is not a normative struggle, then what is?

Noten

• * I wish to express my gratitude to the Netherlands Journal of Legal Philosophy for giving us the opportunity to publish this special issue, as well as for their skilful guidance in overseeing the entire project. A special thanks to Candida Leone, Lyn Tjon Soei Len, and Niels Graaf for their careful readership and valuable comments on earlier drafts of this text. It goes without saying that all that is wrong with this piece is my responsibility alone.

• 1 Martijn W. Hesselink, Justifying Contract in Europe: Political Philosophies of European Contract Law (Oxford: Oxford University Press, 2021), 7.

• 2 Hesselink, Justifying Contract in Europe, 8.

• 3 Hesselink, Justifying Contract in Europe, 7.

• 4 Hesselink, Justifying Contract in Europe, 281, footnote 39. Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing, Epistemic Injustice (Oxford: Oxford University Press, 2007).

• 5 Hesselink, Justifying Contract in Europe, 439.

• 6 This is not to say that I defend identity politics. Quite the contrary, I have significant issues with identity politics. Moreover, I agree with Hesselink that identities are not fixed; more strongly even: our identities appear fragile, conflicted, and our views and convictions can certainly change over time. Whilst accepting all that, our (fragile and conflicted) identities still hang together with the utterances we make. If I say: ‘I am a feminist’, and I also mean what I say, this saying – in a way – also constitutes me as feminist. In sum, what is at stake is the performative relationship between the subject and its utterances. This performative relationship involves a form of self-making – a self-making, however, which is never fully self-inaugurated as this process of self-making takes place through norms and language that are, no doubt, already in place.

• 7 Theodor W. Adorno, Negative Dialectics, trans. E.B. Ashton (London; New York: Routledge, 1990).

• 8 Hesselink, Justifying Contract in Europe, 14; Hesselink, Justifying Contract in Europe, 282. Rainer Forst, Normativity and Power: Analyzing Social Orders of Justification (Oxford, New York: Oxford University Press, 2017), 5.

• 9 See also Lyn Tjon Soei Len’s contribution in this special issue.

• 10 See Hila Keren, ‘Feminism and Contract Law’, in Research Handbook on Feminist Jurisprudence, eds. Robin West and Cynthia G. Bowman (Cheltenham: Edward Elgar, 2019), 406-426. Of course, Hesselink is right to observe that questions of commodification and market-alienability (versus market-inalienability) are not reducible to the distinction between the contractual and non-contractual divide. At least in civil law jurisdictions, donations are in fact recognized as legally binding contracts. At the same time, the legal order still tends to look upon donations with a certain degree of suspicion, at least as compared to ‘ordinary’ bilateral contracts (‘proper market exchanges’). Following the ‘logic of the market’, the legal order seems to ask itself: why is someone willing to bind themself without asking anything in return? This differential treatment of gifts vis-à-vis bilateral contract is only meant to show how contract law, including contract laws that generally recognize gifts as enforceable contracts (such as contract laws in continental Europe), are crucial in structuring the separation between market and non-market transactions (often the ‘feminine’ sphere; the sphere of selflessness). See Hesselink, Justifying Contract in Europe, 340-341.

• 11 Hesselink, Justifying Contract in Europe, 132.

• 12 Hesselink, Justifying Contract in Europe, 11.

• 13 Hesselink, Justifying Contract in Europe, 445.

• 14 See Raymond Williams, Keywords: A Vocabulary of Culture and Society (Oxford: Oxford University Press, 1985), 85-86.

• 15 Compare also the relatively popular but commonplace critique of the ‘radicalness’ of youths. Especially older people tend to criticize and scold the ‘protest culture’ of teens and adolescents for only saying ‘no’. The critique, then, is that these ‘radicals’ merely criticize, and refuse to provide positive answers or constructive alternatives to the things they criticize. Note that these ‘critiques of critiques’ are often profoundly imbued by conservatism. Think only of the popular quote (wrongly attributed to Winston Churchill) that says: ‘If you are not a liberal at 20, you have no heart. If you are not a conservative at 40, you have no brain.’

• 16 Of course, even in this narrow conception, which reduces critique to fault-finding, the relationship between critique and normative theory is complex. Norms and normativity already play a role in fault-finding: we typically find a certain ‘fault’ with reference to a normative benchmark.

• 17 Note that both Foucault and Butler often speak of ethics, rather than morality. However, following Habermas, Hesselink strictly separates moral discourses from ethical discourses. To Hesselink, ‘moral discourses refer to the universal duties that all human beings have towards each other, [whereas] ethical discourses refer to values, traditions, and identities with a view to determining what to do in order to live a meaningful and authentic life.’ In Hesselink, Justifying Contract in Europe, 51.

• 18 Judith Butler, ‘What Is Critique? An Essay on Foucault’s Virtue’, in The Political: Readings in Continental Philosophy, ed. David Ingram (London: Basil Blackwell, 2002), 212.

• 19 Foucault: ‘There is something in critique that is related to virtue. And in a certain way, what I wanted to speak to you about was the critical attitude as virtue in general.’ In Michel Foucault, ‘What Is Critique?’, in What Is Enlightenment? Eighteenth-Century Answers and Twentieth-Century Questions, ed. James Schmidt, trans. Kevin Paul Geiman (Berkely and Los Angelos: University of California Press, 1996), 383.

• 20 Compare in this context also Hesselink’s critique on monistic contract theories that are based on one or only a limited set of ultimate values or ultimate truths. Others have described such theories as ‘Euclidian theories’, which use a small number of apex principles from which the entire system of contract law logically follows. See: Shivprasad Swaminathan, ‘Mos Geometricus and the Common Law Mind: Interrogating Contract Theory’, The Modern Law Review 82, no. 1 (2019): 46-70.

• 21 Foucault, ‘What Is Critique?’, 386.

• 22 Compare the term ‘dysconsciousness’ which gained prominence in the 1990s. Dysconsciousness has been defined as the ‘uncritical habit[s] of mind (including perceptions, attitudes, assumptions, and beliefs) that justifies inequity and exploitation by accepting the existing order of things as given.’ E.g., in: Joyce E. King, ‘Dysconscious Racism: Ideology, Identity, and the Miseducation of Teachers’, The Journal of Negro Education 60, no. 2 (1991): 135.

• 23 Butler, ‘What Is Critique? An Essay on Foucault’s Virtue’, 215.

• 24 Hesselink, Justifying Contract in Europe, 132; Seyla Benhabib, ‘Models of Public Space: Hannah Arendt, the Liberal Tradition and Jürgen Habermas’, in Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (Cambridge: Polity Press, 1992), 94.

• 25 Hesselink, Justifying Contract in Europe, 14, 282; Forst, Normativity and Power, 5.

• 26 Cf. Judith Butler, Frames of War: When Is Life Grievable? (London; New York: Verso, 2009).