Marija Bartl, ‘The Idea of Transformative Private Law’

During the recent Launch event of the Amsterdam Center for Transformative Private Law, we discussed the concept of Transformative Private Law. In what follows, I present the concept both as an analytical/critical project as well as a forward looking agenda.

From the Center for the Study of European Contract Law (CSECL) to the Amsterdam Center for Transformative Private Law (ACT)

The Amsterdam Center for Transformative Private Law is the proud successor of Centre for the Study of European Contract Law, which has long been one of the most important places for the study of European private law (EPL). In terms of substance, CSECL focused on the analysis of the role of private law in the dynamics of EU integration and the social justice dimension of this Europeanised private law. The group has also forcefully contributed to the debates on a general private law in Europe. In terms of method, the group adopted a transdisciplinary and contextual approach. In terms of the political project, the group aimed to build European society through private law (justice).

In fact, the debate on the creation of general private law in Europe, as means to reduce instrumentalism and increase justice in private relations across Europe, has been a major motivation in CSECL, not only for excellent scholarship but also as a contribution to Europe-building. The waning political enthusiasm for general private law has, in turn, created a certain sense of disenchantment in the European private law community in general, and our Centre in particular, and generated the urgency to rethink the project of European private law.

What way forward for the group? One way to approach the future of EPL was to accept the framework of the project as it is – that is, embrace its regulatory nature and pointillist character, dispersed over across regulatory silos, and attempt to see how more social justice can be squeezed into its current mode of operation. The other option was, we thought, to think bigger: and try to redefine the EPL project itself, and thereby our own project.

To go back a bit, already for a long time, many members of our group have seen the current socio-economic model built on the assumption of indefinite economic growth, where concerns for competitiveness and profit undermine both environmental sustainability and social justice, as being in need of transformation. Most of us also saw the complicity of the rules of private law – that is corporate law, contract law, finance, consumer law, labour law, insolvency law etc. – in facilitating and entrenching this unsustainable economic system.

And once our group identity yet again came up for discussion, as it had several times in the past already, consensus persistently seemed difficult to find. In fact, the group quickly rejected several prepared proposals that were put to the meeting.

However, something was different this time around. In a follow up session of less than two hours, the group not only consensually converged on the new name, the Amsterdam Center for Transformative Private Law, but also on its acronym ACT. We all were taken by surprise by the spontaneity and quickly built consensus around the non-premeditated choice. There was something timely about this development.

Transformative Private Law

Today I see this eruption of (collective) consciousness as proof that there is common ground in our call to embrace transformation, and transformative private law, as a new orientation in our scholarship. Our concept of transformative private law has both an analytical/critical dimension as well as more programmatic dimension.

Transformative Private Law is an Analytical/Critical Project

Private law is always transformative. There is no articulation of private autonomy, or private legal order, that is pre-political and pre-legal. Every articulation of rights and duties, the enabling of some sorts of cooperation as opposed to others, and providing some legal tools as opposed to others, are all political choices. These in turn empower some actors more than the others – depending on the existing constellation of economy and society.

Just consider the foundational assumption of privity of contracts in the constitutions of the global economy today. The rules of contract are the building blocks of ‘global value chains’ (GVC) – the locus of global production today. The old principle of privity of contracts then, aided by some other private law rules, serves currently to shield many multinationals from any liability for labour, environmental and HR violations that occur along the chain. Or take finance. Finance represents some 20% of global GDP, and most of this market is build from relatively sophisticated constructions of contract, property, corporation or insolvency – as Katarina Pistor shows in her excellent recent book. It is quite clear at the same time that finance has empowered some actors more than others, and in fact stands at the root of escalating global inequality today.

The analytical / critical project behind Transformative Private Law, then, is to grasp how contemporary categories of private law (contract, property, corporation, finance) and the principles on which they are based (such as privity of contracts, shareholder primacy, causality, liability) contribute to entrenching outcomes that are environmentally harmful and socially unjust in the European and Global economy and society today. Of course, understanding the ways in which private law contributes to the constitutions of the challenges in European and global economy, opens up spaces to rethink what ‘better’ private law framework could look like.

Thin, yet Important, Programmatic Dimension of Transformative Private Law

As said, Transformative Private Law is a critical-analytical project, which aims to explore how private law has over time transformed private and social relations. At the same time, as with the CSECL, we as a group undertake this project starting from certain shared focus points, or directions, along which the historically particular transformative power of private law should be examined.

If we look at the scholarship of individual ACT members, four such different focus points can be found. These are (the challenges of) environmental sustainability, social justice and equality, a just digital economy, and equitable money and financial systems. I don’t see these focus points as accidental: they represent both the shared aspirations toward, as well as points of concern in, the contemporary European and global society and economy.

This is not all, however. As a group, we also share several core assumptions that allow us to approach the role of private law in the constitution of these four aspirations and challenges. Namely, we don’t see environment, inequality, digital economy and financial systems as separate from each other, but rather view these as interwoven. Acting on any one of them may have a spillover effect into other areas, positive and negative, and responsible scholarship will aim to explore these broader resonances. As a group then, we aim to put these four concerns in our scholarship in the conversation with each other – allowing us to explore the interlinkages.

Furthermore, as a group we also share the sense of urgency, seeing all four challenges – environment, inequality, digital economy and financial systems – as having exceeded any safe ‘normal’ threshold, prompting us to take responsibility both as citizens and scholars to ACT. Those of us who choose to act as citizens, have not only relied on political institutions, but also on political activism.

As private law scholars then, we see it as our responsibility to contribute to the public / democratic debate, by showing how private law both constitutes the contemporary problems (analytical/critical project) and opens up new possibilities for ‘thinking change’ (programmatic dimension).

By ‘thinking change’ through private law we mean the ambitious academic projects aiming to rethink the basics of private law ordering. We aim to provide new conceptual categories and broad frameworks for understanding private law, that allow us to comprehend both how private law lies at the root of a broader societal problem examined, and articulate on that basis some more specific proposals to address it – getting us closer to the shared goals of environmental sustainability, social justice and equality, just digital economy, or sustainable money and finance.

To give some examples of the scholarship currently undertaken at the Centre that fits this description, I would name projects such as: reconceptualising consumer law around sustainable consumption, developing legal understandings of sustainable finance, responsibilising corporate law, rearticulating the third party effects of contracts, theorising relational private law, developing new forms of property and sharing, understanding broader implications of private law driven climate litigation, unpacking the implications of AI for civil justice, or thinking how to democratise digital platorms. We also engage in more experimental approaches, such as rethinking private law the other-way around: starting from the idea of the economy that we want and trying to develop a private law for such economy.

Our commitment to contribute to the public debate is expressed not only in actively reaching out to share the knowledge we produce, but also in our attempt to learn from the public. By allowing, especially, marginalized knowledges to influence our scholarship in both identifying how private law constitutes challenges and how a changed private law infrastructure may contribute to changing it, we aim to offer new private law horizons for Europe and the globe.

Relation to the European Private Law Project: Or Where did Europe go?

What does all this mean for the project of European private law with which I started? In brief, I believe that there is much reason for optimism for the future of European Private Law, if we re-frame the project in such a radically new way.

Transformative Private Law is committed to the project of building Europe, however in a different way than the EPL project did. In particular, by articulating how private laws in Europe both constitute and can help redress some of the most pressing challenges of today, TPL hopes to build Europe on a more sound material basis. That is, we are less interested in replicating the national models of private law at the European level, and more interested in how private laws in Europe contribute to the making of the major challenges that threaten to drive a wedge through the Europe project. What better motivation to ACT for European private lawyers?