This comment starts from a reading of Katharina Pistor’s The Code of Capital, together with Martijn Hesselink’s proposal for a progressive European code of private law in this issue. I emphasise how Pistor brings to legal debates a renewed awareness about markets as historically contextual and legally structured socio-legal configurations where hierarchies are pervasive. This awareness points at a path for action, which I understand as a project of market democratisation. I see Hesselink’s proposal as contributing to this project. However, I offer a tweak to his argument by drawing on a pool of normative and empirical sensitivities developed by literature on governance and democratic experimentalism. On my reading, Hesselink’s progressive code would be difficult to realise through democratic deliberation in the public sphere alone. The project would have better prospects for success if it relied on iterative destabilisation and redesign of existing market arrangements through platforms that allow for their contestation, the voicing of both popular and expert input in their redesign, and the monitoring of the new solutions. Thus understood, a progressive European code may rely on institutions and processes available in European Union (EU) law which create spaces for contestation of existing dominant assemblages of the modules of capital as well as their progressive rearticulation.

The European Union (EU) arose, in purpose, to undo the legacy of European geopolitics. Over decades, the EU has attempted to disrupt, or ambitiously transform, how its constituent communities “imagine” the space and boundaries of the Union’s geography. Yet, some 30 years since the Maastricht Treaty, old geopolitics manifests a distinct inertia over the mental maps of EU policy-makers and EU legal scholarship generally. For instance, should one query the EU’s cartography, it is likely an old geopolitical grammar conditions how policy-makers and scholars “map” and see the Union’s boundaries: 27 members, spanning 4,233,255 km2, and comprising a population of 447 million. Obscured is how the EU has generated a transnational and performative geography, with novel boundaries of rule that operate differently in quality and scale. In a nutshell, cartographic perceptions in EU policy-making and scholarship have rarely ventured beyond the terms of statist geography, or the worn geopoetry of “shared” or “pooled” sovereignty between Member States. This state of cartographic perception is curious, since the EU has been a geo-institutional project created to disrupt the traditional mentality of geopolitics and, further still, expand horizons of imagined social spaces, boundaries, and belonging(s).

This comment aims to show how Klaus Eller's paper on ‘The Political Economy of Tenancy Contract Law’1 raises the stakes of private law scholarship and contributes to the larger project of remodeling legal institutions in a progressive direction. The comment starts by contextualising the rapid spread of the Law and Political Economy (LPE) movement; illustrates through examples the generative impact of LPE on contemporary contracts scholarship; and highlights two strands of Eller’s original contribution to such literature: a welcome reflection on the value and limits of Materialisierung, and a radical widening of the private law inquiry to include institutional dimensions of legal reform. The point of fostering such new directions is not to ditch the very logic of private law and its endogenous mechanisms of justice, which are still essential to progressive legal work. What is no longer tenable is to keep seeking socially oriented solutions exclusively within the private law arsenal of possibilities, even when it has become obvious that only a synergic approach can produce accurate diagnoses of – and perhaps cures for – the structural predicaments of the market economy.

This article unpacks some severe forms of exploitation of workers, resulting from the use of free provision of services for purposes that it was not intended to fulfil, under internal market law. It explores how this evolution of posting relates to the existence of a market resting only on the international assignment of workers, and proposes that the European Union (EU) takes steps to limit or prohibit assignment of labour, especially in the sectors (agriculture, meat sector, construction) where posting of workers, as some recent cases show, leads to extreme forms of exploitation that can be tagged as slavery.

The emergence and consolidation of European Community law (later European Union law) was rendered possible by key legal and political actors drawing a map of supranational law with the key concepts of direct effect, primacy and uniformity. The underlying assumption was that the actual territory of the law, the law on the ground, would come to fit into the drawn map. However, the last two decades have seen trust on the transformative power of the map drawn through such concepts decline, not least due to related developments. First, what looked like residual points of resistance have become polarized sources of contention over the scope and meaning of EU law; (2) sheer indifference towards EU law has emerged as a relevant attitude, partially replacing acceptance or opposition. Both developments have not led not only to a crisis of European law, but also to an existential crisis of the very actors (the “cartographers”) in charge of drawing the map of European law.

In 2014, the European Union adopted the Seasonal Workers Directive to achieve a twofold aim: meeting employers’ demand for flexible and cheap labour and enhancing protection for third-country national (TCN) workers. Especially Article 23, the equal treatment provision, triggered a cautious optimism among scholars and trade unions, which looked at the Directive as a source of increased protection for seasonal workers. However, trade unions also pointed out the limited reach of the Directive, criticising its lack of commitment and ambition. Over the years, and especially during the Covid pandemic, it became clear that the Seasonal Workers Directive did not represent a game-changer for TCN seasonal workers, whose increased protections remained true only on paper. This contribution draws on the case of Italy during the pandemic to understand the reasons for the Directive’s limited impact. The article critically examines the different political tensions underpinning the adoption of the Directive, to better understand why the Directive is not applied in practice and how it impacts the labour market and migrants’ social conditions.

Martijn Hesselink’s ‘progressive code’ stands on a century-old leftist tradition. What makes the project unique, however, is the transfer from the nation-state context to the European context and its reliance on principles instead of a fully composed catalogue of rights and obligations. My main criticisms are ultimately the lack of a convincing and fully developed background on both sides of his intellectual construct: the public and the private sphere. Martijn Hesselink has an idealising notion of the public sphere, which he does not yet support with a corresponding EU constitutional theory of the public sphere, and he marginalises society as its own private sphere. The understanding of the public sphere needs to be theoretically and conceptually better grounded in order to be convincing and he would have to recognise that the role and function of the private sphere remain a blind spot in the ‘progressive code’.

This intervention expands Stefan Eich’s analysis of the parallel between language and money in The Currency of Politics by emphasising the increasing importance of linguistic communication within processes of production. This expansion has had an impact on monetary policy and on the communicative strategies of central banks. The suggestion is to integrate Eich’s call for the politicisation of monetary design with an appraisal of post-fordiist productive processes and the importance of money creation for the valorisation of those processes. If this reading of the expansion of the logic of economic value to linguistic communication is correct, then any call for a monetary design of money that works like public speech ought to be carry forward cautiously, in light of the colonisation of the latter (speech) by market forces

Seasonal migrants’ exploitation in Europe, especially in agriculture, is often seen as having its origins in failure of migration or labour policies. Indeed, the virtual impossibility to enter a country as a regular non-European Union (EU) worker coupled with the needs of agricultural work, requiring low-skilled workforce and short time notice for recruitment, generates a perfect environment for exploitation and the related phenomenon of gangmastering. However, work exploitation in agriculture is nowadays a structural problem, requiring structural changes in the way food is produced and intended by the agri-food supply chain as a whole. Indeed, a truly preventative approach needs not only to protect seasonal migrants from human rights violations, but also to involve agribusiness in tackling the root causes of migrants’ exploitation. Building on international standards on business and human rights, the aim of this contribution is to propose a more holistic view of the phenomenon workers exploitation in agriculture. Recent European policies seem to have understood this need, calling enterprises and farmers to bear their responsibility by introducing an accountability discourse for the agribusiness and the food supply chain, either indirectly or directly. The new social conditionality clause in the Common Agricultural Policy, the Directive on Unfair Practices in Agriculture and the recent Commission proposal for a Directive on mandatory human rights due diligence should therefore be read in conjunction with major developments in international law that call for the responsibility of powerful private actors operating in agri-food sector.

Despite being sympathetic to the aim of Martijn Hesselink’s paper to explore how private law might be used to tackle gross inequalities, it is argued that private law is based fundamentally on the moral principles of interpersonal justice, which being a kind of partial justice as explained by Thomas Nagel are distinct and often opposed to the impartial standards of justice used in theories of social justice. European private law either has to abandon the principles of interpersonal justice in favour of a goal-oriented regulation or alternatively a richer conception of interpersonal justice may be developed that may assist to a limited extent the pursuit of greater equality.

Stefan Eich’s The Currency of Politics reconstructs and contextualises the monetary understanding of some of the most renowned political thinkers in history. By contextualising each author’s conceptualisation (subjective perception) against their respective contemporary monetary frameworks (objective institutional dimension), Eich elaborates a narrative composed of cumulative layers leading to a double conclusion: that money is political at its core, and that current policies are actively de-politicizing money. These relevant findings are the point of departure of a reflection on the role that law, and constitutional theory in particular, must play in the configuration of Europe’s common currency to overcome some of the most acute difficulties the process of integration is currently experiencing. If the triad law, money and public discourse is supposed to articulate social life in the polity, European monetary integration has neutralised them by neglecting the relevance of one of their key features: civic reciprocity. Reactivating the three mechanisms of social integration requires an exercise of constitutional imagination able to integrate interdisciplinary knowledge about money within an institutional framework able to prevent the concentration of unlimited power in unaccountable institutions and to promote and fully exploit the democratic potential of money.

In my contribution to the symposium on Michael Wilkinson’s new book, I focus in on his analysis of Hermann Heller’s thinking regarding the state. Icompare Heller’s writings with those of Hugo Sinzheimer (1875–1945), a legal scholar, practising lawyer and politician who was in a position in 1918-1920 to shape the new labour law of the Weimar Republic and who thereafter became a prominent commentator on that law. In particular, Ilook at two publications from 1933: Heller’s Autoritärer Liberalismus and Sinzheimer’s Die Krisis des Arbeitsrechts, or ‘crisis of labour law’. I then consider the trade union movement’s orientation to the state during the Weimar years, and what light this shone on Heller’s and Sinzheimer’s analysis. I conclude by identifying several questions raised by the Weimar debates for labour law, trade unions and employment relations that are of enduring importance today.

This essay engages with Stephan Eich’s The Currency of Politics. It finds that the book pursues two goals at once: a minimalist goal of bringing money as a subject of inquiry back into the fold of political theory and a maximalist goal consisting in the stated ambition to ‘articulate more democratic visions of the future of money’. It interrogates Eich’s effort to harnesses a historical perspective to normative claims from the standpoint of a historian of pre-modern Europe. More specifically, it asks what role close reading, intertextuality and contextualisation play in Eich’s approach; why he recognises certain episodes from the (distant) past rather than others as relevant to current predicaments and potential future scenarios; and why he singles out the English financial revolution of the 1690s as the first relevant moment of crisis after the monetary reforms undertaken in Athens in the sixth century BCE.

Michael Wilkinson’s Authoritarian Liberalism puts forward a challenging and controversial claim: the history of European integration and the trajectory of the constitutional orders of the founding Member States have always been driven by authoritarian liberalism. This comment focuses on a certain slack, in Wilkinson’s analysis, between the material constitution of European states and authoritarian liberalism as a form of government. More specifically, the comment highlights the need to retrieve a more conflictual relation between, on one hand, the material constitution of the welfare state and its industrial involvement, and on the other hand, the constitutional forms adopted by authoritarian liberalism.

This article discusses the United Kingdom (UK) 2019 Seasonal Worker Visa, which was adopted to address labour shortages in horticulture. It explains the challenges faced by workers in agriculture more broadly, and the particular issues raised by seasonal visas. It argues that the UK scheme contains significant restrictions on workers’ rights. The article situates this scheme in a framework of ‘state-mediated structures of injustice’, namely instances where legal rules with an appearance of legitimacy create or increase vulnerability and are connected to widespread structures of exploitation. This theoretical framework focuses on the role and responsibility of the state for workers’ exploitation. The authorities have political responsibility to change these rules, and may also have legal responsibility to do so under human rights law.

Katharina Pistor’s recent work has revealed a deep justice deficit in private law, raising fundamental questions about how it could be reduced. While Pistor favours piecemeal bottom-up solutions to instances of injustice, Martijn Hesselink proposes a more radical top-down strategy – the adoption of a progressive European code of private law. This article explores the top-down and bottom-up pathways to justice in private law, focussing on the role of interpersonal justice as justice between substantively free and equal persons in European private law. It shows that although concerns about a balance of the competing interests of private parties pervade many of its areas, they do not take central stage in European private law. The substantive private autonomy embodied in national private law systems, the regulated private autonomy enshrined in EU secondary private law and the unregulated private autonomy with an interstate element underpinning EU free movement law sit uneasily together. It is argued that in order to enhance the role of interpersonal justice in the internal market and develop a more coherent European private law, the current bottom-up pathway thereto could be complemented by a more top-down roadmap towards the EU principles of private law justice.

The end of free movement as a consequence of the United Kingdom (UK)’s withdrawal from the European Union (EU) meant that it was necessary for the UK to devise a new migration system when the transition period came to an end. One aim of this article is to determine in what respects the new system, which came into force on 1 January 2021, draws on or differs from the previous immigration system. To the extent that this inquiry reveals some similarities, another aim is to uncover how the policymaking process produced these continuities. Drawing on the concept of path dependency from the ‘new institutionalism’ literature, the analysis reveals that two critical decisions taken by the New Labour government (1997–2010) set in train a path dependent policy process that has shaped immigration law and policy today. Two mechanisms of path dependency are identified. First, there were continuities in the operation of conceptual frameworks, methodologies and conclusions amongst organisations tasked with designing the new immigration system. Second, the position adopted by employing enterprises favoured the retention of key features of the previous system.

Stefan Eich’s The Currency of Politics offers us a new way of looking at the EU’s sustainable finance trend, one that allows us to see how the ‘greening’ financial transactions creates “green money” and thus intertwines with questions of justice and democracy. In this contribution I explore how The Currency of Politics can help us understand the significance and the constitutional implications of the transformation of the euro into the ‘currency of the green transition’ as it has been referred to by Eurogroup’s President in 2021. I show how the three trends of EU green bond issuance, granular sustainable finance regulation and the progressive greening of monetary policy are moulding the euro in a political sense as the ‘currency of the green transition’ as much as the legal tender. Euro currency becomes in this sense ‘a governance project’ for the sustainable transition. This perspective offers multiple points of engagement with the themes of Stefan Eich’s important book. For example, the claim of privatisation of money creation must be qualified to reflect on the implications of the granular way in which EU law defines what green money is. At the same time, while a ‘green currency’ creates spaces for engagement and new forms of organising a polity, it still remains largely removed from ordinary citizens as ‘technocratic’ rather than ‘democratic’ self-government.

Debate on Martijn W Hesselink’s article: Reconstituting the code of capital: could a progressive European code of private law help us reduce inequality and regain democratic control?

The tension between the cosmopolitan vocation of the economy and the national character of politics has lately reached a considerable level of pressure, as control over some political economic determinants of growth has been gradually acquired by European Union (EU) institutions at the expense of national political communities. In his book Authoritarian Liberalism, Michael Wilkinson calls this development a depoliticisation of fundamental decisions concerning economic and socio-economic relationships, a process which has culminated in the Maastricht Treaty. In my comment, I intend to explore the argument concerning depoliticisation, by examining the relationship between economy and politics from a constitutional standpoint. While I agree with the author that depoliticisation has been systematically translated into a political mode of screening decisions concerning economy behind the narrative of necessary and unavoidable developments within the European project, I take a difference stance on the meaning and risks of depoliticisation. I shall argue that a certain form of depoliticisation is intrinsic to any process of constitutionalisation understood as a reflex of a political will. I then shall explain that European constitutional culture’s anti-political prejudice may have at times transfigured depoliticisation into a technique to tame and restrict disagreement.