Voluntariness in Digital Private Law

Private law rests on the idea of autonomous individuals who are responsible for their own actions and who arrange their own legal relationships however they choose. An essential precondition of this model is that each person acts voluntarily and of their own free will. Private law, however, does not specify what voluntariness actually entails. Adults are generally presumed to act voluntarily in their legal dealings, with private law intervening only in exceptional cases, for instance to correct an imbalance where free will is impaired by threats, coercion or sometimes less sinister forms of pressure.

Digitalization is increasingly challenging this established pattern. Studies in behavioral economics, psychology and the sociology of technology call into question private law’s implicit assumptions about the human capacity for free will. The challenge has become especially acute with the spread of artificial intelligence, which has enabled novel, highly effective ways to influence the process of decision making.

The project seeks to clarify the foundations, functions and future development of the concept of voluntariness in private law. It will first use an inductive method to reconstruct how private law currently understands voluntariness. Drawing on interdisciplinary insights, it will then explore what a workable model of voluntariness in digital private law might look like.