European contract law and the capabilities approach: on distributive responsibility for contract law

This paper argues that the normative requirements of Nussbaum’s capabilities approach extend to contract law (and private law more broadly). Contract law is part of a society’s basic structure, i.e. the responsibility bearing structure that is to secure and enhance individuals’ basic capabilities. This argument depends on one’s acceptance of a distributive conception of contract law. This paper understands contract law as a fundamental legal structure of the market. Contract law reflects how people are to behave towards each other, others and society as a whole when engaging in market activities. As the basic regulatory structure of the market, contract law (and private law more broadly) reflects the minimum standards of decency and justice to which a society adheres.