Chantal Mak, ‘Reflections on Transformative Private Law’

What is the meaning of ‘transformative private law’? Or what does membership of a research group that has chosen this name entail? Here are some reflections of a member of the newly launched Amsterdam Centre for Transformative Private Law (ACT), formerly known as the Centre for the Study of European Contract Law (CSECL). Following up on our current director Marija Bartl’s opening blogpost, and former CSECL director Martijn Hesselink’s observations, I would like to select three points for further thought: (1) Do we need to share an understanding of the name, if it is possible to agree on one? (2) What is being transformed? (3) What happened to Europe?

What’s in a name?

In his critical-constructive commentary, Martijn Hesselink poses the question whether the notion of ‘transformative private law’ leaves room for plurality, or rather aims to change society in a certain uniform direction. A similar question might perhaps be asked relating to the composition of a research group by this name.

One may note that the relative under-specification of the adjective ‘transformative’ in principle allows for a broadly inclusive approach. As an insider to the process of name-changing, I would say that the constitutional moment of ACT as a research group serves as an illustration. Had anyone with a background in advertisement or communication sciences been present at our meeting, they would probably have experienced amazement or maybe shock at the rather chaotic way in which the decision on the new name and acronym came about. Without any meaningful discussion of objectives, identity or branding, a consensus emerged and ACT was established. It seems that the discussion on its meaning only started after that moment, for instance when drafting our mission statement and organising a launch event. What field is the subject of research? And what are our analytical and programmatic aims? Still, this did not impede a group of researchers with very different backgrounds and interests from finding agreement on the name.

A behavioural scientist might observe that our current search for an articulation of the meaning of ‘transformative private law’ is just a way of justifying the decision that was made – and they may be right. Yet, I like to think that there is something more to it, in line with Marija’s idea of a manifestation of ‘(collective) consciousness’. The researchers who are currently members of ACT are expressing manners in which their research fits the theme as well as defines it. In that sense, the terminology is not so very different from ‘European Contract Law’ or more broadly ‘European Private Law’, which Aurelia Colombi Ciacchi once pointed out to be ‘a very popular expression, despite or perhaps even thanks to its vagueness’. What ACT, as a research group and a name, furthermore, has in common with European Private Law is the wide variety of themes and research questions that it can hold under its umbrella. Rather than imposing one common vision or direction, the new name invites discussion on the plural understandings and societal developments that it may capture.

On nudge-worlds and linearity

If contemplation of the concept of ‘transformative private law’ itself can be said to form one of the lines of inquiry of the group, a further question addresses the object of research. Who or what are we studying? And are we only looking forward, as is one of Martijn Hesselink’s concerns, or is there a place for historical, reconstructive work as well?

Insofar as we can understand private law as being transformative, it may be said to change society as well as private-legal relationships in that society. There might even be a specific agenda behind that transformative role, and I share Hesselink’s concern on how such agenda-setting may impact human agency. At the same time, it seems important to distinguish two ideas of transformative private law: one in which making possible societal change is at stake, and one in which people become a means to the end of changing society, even if this may be well-intended in a paternalistic sense.

The discussion on this point reminds me of that on Richard Thaler and Cass Sunstein’s Nudge. According to this approach, regulators may design a ‘choice architecture’ that gently pushes citizens towards making the desired decisions, e.g. the best pension plan or healthy diet. There would still be a possibility to make other choices, but knowing that most people do not actively choose something different would allow the regulator to design the best possible default. While the objectives may be benign, however, nudging is not uncontroversial. In particular, it has attracted criticism for the way it allows somebody else, the regulator, to use a person’s choices as a means to reach the person’s ends, i.e. what is considered to be good for them. As Jeremy Waldron has argued, the fact that the regulator makes use of a person’s choice pattern in a somewhat manipulative way at least raises a worry that dignity, as autonomy to choose, will be undermined – we may wonder whether we wish to live in such a ‘nudge-world’. In a similar way, further research on ‘transformative private law’ may problematise the manners in which private law is engaged to bring about societal change.

This brings us to the next point: are we looking back or looking forward? In light of the previous reflections, it will be no surprise that in my view the concept of ‘transformative private law’ leaves space for both options. To the extent that private law reacts to societal developments as well as in some ways shapes them, it may even be difficult to fully discern historical reconstruction and programmatic transformation from one another. Transformations might not be linear processes in time, as the distinction between retrospective and prospective notions seems to imply. And changes in private law may have unintended effects, which will influence the course of events and possible outcomes. One need only think of the impact of EU consumer law Directives on contract law cases to find examples, such as the shaping and reshaping of consumer mortgage and credit contracts in the interaction among the Court of Justice of the EU and national courts.

Europe internalised

Finally, what is Europe’s place in ‘transformative private law’? As Marija indicates, the concept in ACT’s understanding in many ways builds on the European private law debate. Although the idea(l) of a European Civil Code has not become reality, private law still has an unmistakable impact on the way legal and political communities are formed in Europe. These aspects are included in the specific research focus that ACT puts on the themes of environmental sustainability, social justice and equality, a just digital economy, and equitable money and financial systems.

While we study these subjects through interdisciplinary methods and taking into account global dynamics, research questions are mostly linked to the European debate. This is not strange, given the research group’s basis in Amsterdam. Still, the choice is also substance-driven, given that an important ambition of the research group continues to be to contribute to the project of building a European society. In that sense, Europe remains a point of departure and a destination.