This Article addresses the question of how to explain and justify the allocation of politically sensitive legal questions to civil courts in the European Union. It proposes a pluralist theoretical view on interactions of private law adjudication with legislative initiatives in the process of building a European political community. This is elaborated on the basis of a reconstruction of the interaction between judicial and legislative processes in three high-profile cases (concerning non-discrimination, housing and climate change) in light of three theoretical perspectives: social justice, constitutionalism and public sphere theory. The first two perspectives shed light on the legal-political dimension of private legal questions in the European Union and manners in which to handle the plurality of sources and institutions in this field. They do, however, not fully clarify the distinction and relation between Habermasian discourses of justification and discourses of application of law in European Private Law adjudication. The Article suggests that public sphere theory, with a basis in Fraser’s work on transnationalisation, can complement the theoretical understanding of the role of judges in European Private Law. It is submitted that the interaction between national and European levels of adjudication helps maintain transnational deliberative spheres in which the legal-political stakes behind private law can be discussed. This opens up space for the inclusion of different voices in democratic deliberations on questions of social justice. Private law adjudication may thus be considered to contribute to the initiation of discourses of justification which serve the re-imagination of a European political community.

This paper offers a critique of European Union (EU) consumer law’s role in commodification. Arguing that commodification is best understood as a normatively dependent concept, it contrasts two very different strands of commodification critique. While teleological critique refers to conceptions of the good life, authenticity, or the corruption of human essence, deontological critique relies on conceptions of right and wrong, justice, and human dignity. The paper argues for a specific, Kantian–Marxian version of the latter, proposing to understand commodification as a moral wrong when it leads to legal–political alienation. Such legal–political alienation occurs when someone becomes disconnected or feels dissociated from the political community and its political institutions because its laws treat that person as a mere means, not also an end. The only way to overcome such alienating commodification, the paper argues, is through a dialectic of individual and collective self-determination. On this normative basis, the paper, then, critiques core instances where EU consumer law wrongs its addressees through alienating commodification, including its acceptance of personal data as consideration, its encouragement of consumer resilience, and its privatisation of social justice through ethical consumerism.

Online sexist and racist hate speech has been condemned by many and condoned by most. In this paper we explicate in private legal terms the harms caused by sexist and racist hate speech. By centring the experiences of women of colour through coded testimonies we seek to rethink harm in tort in order to make visible private harms, which have remained largely invisible in European private law discourse. We highlight two aspects of harm that private law structurally fails to make visible: health harms and relational harms in the context of persistent and structural gender and racial injustice. In this paper, we argue that these systemic injustices must inform how we think of tortuous harms that arise from sexist and racist hate speech in bilateral relationships. In this article we centre the knowledge of women of colour targeted by SR hate speech within legal knowledge production and to the ways that the legal community thinks about tort law and its purpose. Conceptualising the tortuous harms of sexist and racist hate speech is crucial for access to private law pathways for redress and damages.

In February 2022, the European Commission published the ‘Proposal for a Directive on Sustainable Due Diligence’. This proposal appears a first tentative step to move the European Union (EU) away from a neoliberal conception of corporation. It replaces the wholesale trust in shareholders as the drivers of social progress with a greater reliance on public intervention that, via law, should expand the purposes pursued by corporations and set more sustainable rules for their action. This intended shift towards a more socially responsible, ‘collectivist’ understanding of corporation, I argue, should be seen as part of a broader change in perception of the desirable relationship between the market, government and law in the EU, forced by the many unfolding crises.

In this paper I develop the concept of ‘imaginaries of prosperity’ as an analytical category that should enable us to grasp deep changes in the conception of political economy that the EU is currently undergoing. I use the Commission’s attempt to transform one of the core institutions of the deeply entrenched imaginary of privatised prosperity – the neoliberal corporation – to identify shifts in our background understanding of the economy, politics, government, nature and law which are pointing to the emergence of a more collective imaginary of prosperity in the EU. However, even if Commission’s due diligence proposal represents a visible shift toward such a collective imaginary of prosperity, in the last part of the paper I will argue that a more serious engagement with the question of power and the role of profit is both necessary, and imaginable, if we are to change course from what has led us to the current polycrisis.

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.

Hesselink proposes a progressive code of European private law as a radical response to Pistor’s The Code of Capital, which exposes private law’s complicity in staggering wealth inequality and social injustice. In this contribution, I argue that the proposal for a progressive code is insufficiently radical, because it is not fully equipped to address root problems of socially unjust private law. I suggest that a fuller accounting of root problems is necessary as a precondition for a ‘radical’ response: a more fundamental rethinking of private law based in more inclusive theorising of its role in social injustice. I sketch some of the ways in which intersectional approaches can assist in a fuller accounting of root problems by elevating and highlighting how mutually constructing systems of privilege and oppression give rise to social injustices that shape people’s lives. Notably, accounting of private law’s complicity in social injustice should engage private law’s coding of capital as entangled with race and gender. I argue that intersectionality is needed to enable the sort of paradigm shift, progressive visions and radical responses Hesselink aspires.

Katharina Pistor’s powerful critique of the key role that private law plays in creating private wealth, producing inequalities, and undermining democracy, raises the urgent question of what could be done to set things right or, at least, could be a step in the right direction. This article argues that a progressive European code of private law could be a meaningful part of the solution. A progressive private law code would be a code aimed at making progress towards a more just society, where there is less inequality and where we have more democratic control over our future. The progressive EPL-code would be completely different, in crucial respects, from the civil codes of the member states. It would be European (not national), be mandatory (not optional), have ‘constitutional’ ie primary EU law status (not merely secondary), consist of fundamental principles (not detailed rules), prioritise justice (not economic growth), and be radically democratic (not technocratic).

This article takes stock of legal pluralist thinking in European private law. In which ways have existing theories brought forward our understanding of lawmaking in European private law? Central to that debate are the competing rationalities of EU internal market law, on the one hand, and national, juridical systems of private law on the other hand. An analysis of norms, processes, and actors involved in lawmaking in European private law reveals a field that has matured, but that is now at the threshold of a re-evaluation and potentially a transformation in lawmaking from ordered to strong legal pluralism, with a greater role for private regulation.