ABSTRACT
This paper explores strategies beyond regulatory contract law for overcoming structural injustices produced and reproduced through contracts. In particular, it examines contract abolition, non-reformist contract reform, and prefigurative (non)contract practices. It suggests that these might be more likely strategies for overcoming social and interpersonal domination by contract than contract regulation. Contract abolition, the most radical strategy, should not be understood as an end state but as a new beginning – of contract abolition democracy. It could start from a moratorium on contract enforcement for intersectionally oppressive contracts. Non-reformist contract reforms aim to reduce the power of contract. They are obtained through political pressure from social movements on the regular law-making institutions (courts, legislators and regulators). This requires awareness that contract has replaced property as the primary private law mode of social domination. Prefigurative (non)contract refers to practices adopted in autonomous communities foreshadowing a better society, including consensualism, non-markets, free price and non-enforceability. These practices can be understood as actual – as opposed to hypothetical – social (non)contracts. Each of these nonviolent and radically democratic answers to the practical question of what to do about social domination through contracts are revolutionary in that they go beyond the reformist strategy of regulatory contract law.
Hesselink, Martijn Willem, Beyond regulatory Contract Law : abolition, non-reformist reform, and prefiguration, EUI Law Working Paper 2026/15.
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