Martijn Hesselink, ‘The idea of transformative private law: some critical observations’

The transformation of the centre

The recent transformation of the centre has been truly impressive. It was an excellent idea to widen horizons and pursue new themes. Moreover, the new mission statement is strong, ambitious and full of exciting ideas. Most visible is of course the name change. A striking innovation is the choice for an acronym that is pronounceable – and has meaning – as a word. Almost equally salient is the rupture with Europe. For two decades the research focus in Amsterdam was on European private law. The decision to remove Europe entirely from the name of the centre is significant, especially since it is part a wider trend of loss of interest in the European project, also in academia. For example, the MPI for European legal history in Frankfurt is also deleting Europe from its name. The mission statement expresses a continued interest in private law questions that transcend national boundaries, among other things. Yet, the new name undeniably constitutes a break with the centre’s explicit commitment to the European project.

However, we were not invited to discuss the transformation of the centre in general, but specifically to offer some critical reflections on the idea of transformative private law. Even though it is an entirely novel concept, the mission statement does not define it. That leaves wide scope for the interpretation of its meaning.

Human agency and transformation through law

To be entirely frank, I find the idea of transformative private law a little scary. My first association was with the Chinese social credit system that aims to transform persons into good citizens. Would a transformative private law equally ensure that individuals become good contracting parties, property owners, or re-educated ex-tortfeasors? Other images that came to mind were Orwell’s 1984, with the thought police replaced by a contract police, or of a Kafkaesque metamorphosis, where contracting parties would wake up transformed into large insects. So, when the mission statement speaks of ‘the transformative power of private law’ that does not necessarily sound reassuring.

Transformative private law is instrumental private law on steroids. Instrumentalism uses private law in order to reach certain societal aims, like welfare, social justice, or an increase in cross-border shopping. It is a means-end type of reasoning where private law is placed at the service of good societal ends. But in transformative private law transformation seems to become the aim. Note that transformation goes even further than ‘compliance’, which is already a dubious term in relation to law, especially in the context of private law.

There is a crucial difference, I think, between the word ‘transformation’, a substantive, and the word ‘transformative’, an adjective. The suffix ‘-ive’ suggests that the focus will be on private law that will – and perhaps ought to – make transformation happen. The core question, then, is who or what will – or ought to – be transformed by private law: a private law transformative of what? Of society, of private law relationships, of private parties, or all the above? Either way, ultimately, it seems, transformative law, in general, refers to the transformation of people through law. Private law, specifically, applies only to parties to horizontal relationships. So transformative private law, it seems, is a private law that transforms horizontal relationships and the parties to it, and, indirectly, perhaps also society. Note that the agent here is private law. We are not talking about the transformation of private law, eg by a legitimate lawmaker; it is about a private law that transforms you.

Of course, we have been familiar with the idea of the transformation of society. Think only of Polanyi’s The great transformation (1944). Also the idea of transformation through law is well known. Weiler’s The transformation of Europe (1991) immediately comes to mind. But in both cases the term was central to a historical reconstruction ex post of a transformation that had token place in a society through various different actors and actions, not as an agenda ex ante for the law or a branch of it. Indeed, transformative private law is a radically prospective – ie forward-looking – notion. This it has in common with utilitarianism and philosophical pragmatism (and its corollary, functionalism). From the utilitarian and pragmatist points of view, rights and all other entitlements, rooted as they are in the past, are fundamentally up for discussion: they will be acknowledged only to the extent they will make us better off in the future or will otherwise continue to work for us. But transformative private law seems to go one step further. Existing private law rights and obligations are not merely open for discussion, there is now a positive agenda to change them. Very concretely, there is an obvious tension (and potential clash) between the constitutionalisation of private law and transformative private law: will transformative private law take rights seriously?

In practice, most of the transformation will have to occur through incentives, ie via carrots and sticks that aim to change people’s conduct. Given that private law does not operate through imprisonment and fines, nor via subsidies and tax cuts, but through civil remedies made available (or not) to private parties, much of the transformation will have to take place via civil liability and the threat thereof. When effective, the incentives will make private parties internalise the norms. This is where the transformative re-education mainly would take place. Still, the capacity of private law to transform society should not be overstated, because the enforcement of transformative norms always will remain dependent on private initiative.

One does not have to be a thorough-going Kantian to see some reasons for concern here. Is it really ok if private wants to transform us? And should we not have a say in that? What will be left of our agency, individual and collective, in shaping ourselves, our relationships governed by private law, our private laws, and indeed our society? Of course, these issues are addressed in the mission statement, but our discussion here is about the idea of transformative private law. And nothing in the concept ensures individual and collective agency. Rather, the transitive connotations of the suffix suggest that whatever will be transformed will be reduced, insofar, to mere objects. Private parties and their relationships will undergo the transformation. It will happen to them. And that sounds a little scary.

It is not merely our individual agency and self-determination, in our private dealings, that is at stake here, but also collective agency and self-determination, in determining the rules that will apply to those dealing. For it is not clear from the notion itself who will have the power over the transformative force of private law. As its addressees, will we have a say over private law and its transformative potential? Will transformation through private law be an act of collective self-transformation? Is it legitimate to take the outcome of transformation as a starting point for private law making? For is not the premise of democracy that people will disagree on desirable outcomes?

Although the notion of transformative private law certainly is compatible, in principle, with the transformation of relationships governed by private law (and in doing so, of society at large) into more just ones, there undeniably exists also a clear risk – especially when the end is held to justify the means – that transformation through private law will come at the price of interpersonal or social injustices at least in some instances.

The notion of transformative private law also does not sit easily with the idea of a pluralist society. If the transformation is going to be the metamorphosis into a new state, then, although not strictly inevitable, one would expect the transformation to aim insofar at a degree of homogeneity. If transformative private law aims to transform relationships governed by private law, and perhaps the parties, and maybe, in doing so, somewhat more indirectly, also society at large, then one would expect these relationships, parties and society, to become more uniform at least pro tanto. This goes further than instrumental private law that aims to achieve certain objectives without any specific interest in transforming anyone. Collective objectives are perfectly compatible with a pluralist society, while transformation of that society in a certain direction seems to risk undermining pluralism.

I am aware of the risk of overstating my case. I might come across as a libertarian, warning, in Hayekian vein, that we well will end up on The road to serfdom (1944). However, I am not arguing for libertarian freedom as non-interference. Hayek claimed that even minimal societal planning inevitably would lead to totalitarianism. History proved him wrong. But my point is a very different one. My concern is with agency freedom, individual and collective. The problem is that transformative private law is instrumental private law on steroids, because it does not aim merely at reaching good societal goals, partly using us and our private law relationships as means to those good ends; the aim now becomes to transform us, individually and collectively, and our interpersonal relationships. Moreover, it is not even ensured that people themselves we will have a say in it. As said, it is not intrinsic in the concept of transformative private laws and transformation through private laws that the addressees of these laws will be able to regard themselves also as their authors. It may well be that powerful economic interests will come to dominate the transformative agenda. Just like the instrumental understanding of private law made it vulnerable to deregulatory agendas (because private law is such a poor (‘inefficient’) means for achieving most societal ends), there exists a real risk that private law instrumentalism on steroids will turn out to operate as economic neoliberalism on steroids, becoming a boomerang from a left-wing point of view.

Interestingly, there exists a direct tension between the idea of transformative private law and the new acronym, if read as a word. ‘Act’ could be understood either as a verb or as a substantive. As a verb, in the imperative mood, with an exclamation mark, it would evoke political activism. As a substantive, there would also be more conservative connotations, in particular regarding the juridical act, which was the core notion of classical 19th Century private law. In any case, the term refers to acting, and hence, human agency. Making human acts, action, and agency central seems to suggest an interest in practical philosophy. This is the discipline concerned with questions of what to do, individually or collectively, in particular the normative questions of what we or I ought to. That would be an entirely different approach to private law studies. One reading of the relationship between act and transformative private law, could be to understand it as a dialectic one: private law, then, is the law that responds to the private acts of private actors, but at the same time it aims to transform these acts and actors.

While transformative private law can be understood as a somewhat scary notion, a very different reading is also possible – its opposite, in a sense. On this view, the notion is unduly bland and technical instead of political. It would be akin to an electrical transformer that merely changes electrical energy from one voltage into another. In What should legal analysis become? (1996), Unger proposed to understand private law as a catalyst for change. That reminds us of Obama campaigning quite generically for ‘change’. This was perhaps not the best part of his legacy. Very similarly, the notion of ‘transformative private law’ also seems entirely devoid of any sense of direction or telos. The aim is transformation, but it is not even clear that we are necessarily talking about a transformation for the better. A private laws that would turn society into a monoculture, a radical patriarchy, or one relying exclusively on fossil energy, all seem compatible with the notion of transformative private law. Transformation seems the aim quite generically, not transformation for any specific aim.

Transformation and critique

There is yet another possible way of looking at the new research theme, perhaps the most promising and exciting one. It could be claimed that transformation through private law is already happening. The research agenda would then aim at the critical reconstruction of salient instances of transformation through private law. (And rather than transformers the centre’s researchers could understand themselves as a new generation of critical legal scholars – ‘transcrits’?) The underlying idea would be that our human agency, individual and collective, not as an ideal but in the real world, is constantly being shaped, in part, by the private law that we have. This would be in line with a long critical tradition in private-law-thinking going back at least to Marx and associated strongly with the Frankfurt School. The novelty would be to focus on the transformative force of private law. From the colonisation of our life world to it transformation. The core idea would be that acquiring and exercising private rights and obligations, as constituted by the private law we have, is an ongoing transformative experience. As suggested above, this could also be understood as a dialectic of private law transformation, where the law responds to the private acts of private actors which and whom, at the same time, it aims to transform. Perhaps the claim could even be that transformation through private law is inevitable. The focus would then be on counter-factual thinking, of a private law that shaped us differently. Moreover, attention could concentrate centrally on who are transforming us today through private law, ie on the holders of transformative private law power. That could certainly become a very fruitful and exciting line of fundamental research with a strong relevance for today’s society.

Martijn W Hesselink (European University Institute, Florence), ‘The idea of transformative private law: some critical observations’. Presentation at panel discussion ‘The idea of transformative private law’, launch event Amsterdam Centre for Transformative Private Law (ACT), University of Amsterdam, 14 February 2020.