The legal experts working for the European Union (EU) institutions facilitate EU policy-making activities. But no less importantly, they also shape the evolution of EU law. They have an established presence in EU legal academia and exercise authority through epistemic means. In this role, they make an important contribution to defining the scope and meaning of EU law and the limits of institutional action. Previous research demonstrates that this contribution is largely perceived in positive terms; as ‘clarifying facts’. Yet, as Union officials, institutional legal advisers are bound by Staff Regulations, which prohibit them from acting against institutional positions. This article investigates the role of institutional legal advisers in EU legal academia, placing it in the broader context of the self-image of EU legal scholarship and its ‘enchantment’ with the EU as a political project. It finds that the borderline between institutional strategy and academic research often gets blurred. It argues that EU legal scholarship should maintain a critical distance from the institutions that it studies and re-define its self-identity as a reflective and critical rather than legitimating force. This would contribute to strengthening the EU by enabling democratic debate about its policy choices and their possible alternatives.

This article puts forward a cohesive narrative to explain the contribution of European social policy to the judicial making of Europe. By making a case for the inclusion of social policy as part of the discourse on the constitutional practice of the Court of Justice of the European Union, together with focusing on a socio-legal deconstruction of four seminal social policy judgments of the Court (Defrenne II, Von Colson, Harz and Francovich), the article undertakes a systematic approach to tracing the contribution of the field, and more specifically of its labour and non-discrimination law strands. To formulate its socio-legal analysis, the article adopts an explanatory framework, which draws on Bourdieu’s concepts of capital and field, the theory of legal mobilisation and Moscovici’s minority social influence, and which is applied to the selected judgments as a case-study. The framework enables the analysis to shed light on the dynamics between stakeholders in the social dimension of the European legal field and to persuasively showcase how social policy case-law, despite its sui generis dynamics, merits to have a place in the conversations surrounding the transformation of Europe.

The article explores the Europeanisation of football, focusing on two dimensions of this process: its affective and regulatory dimension. Developments such as the creation of pan-European club competitions and growing cross-border movement of players mean that ‘Europe’ plays an ever more important role in football on an affective level. The same is true on a regulatory level, where EU law and policy have come to impact on various aspects of football, ranging from transfer rules, to club financing, to the sale of broadcasting rights. We argue that only by examining the interaction between these two dimensions can we truly understand what is ‘European’ about football. The article shows that there continues to be strong support in football for the cultural elements of the European Sport Model, including a commitment to local identity, sporting merit and solidarity. By contrast, its governance aspects are increasingly coming under pressure, as the recent European Super League saga illustrates. Our findings suggest that the EU can – and should – do more to improve regulatory standards in football and push for a greater representation of fans and other stakeholders that have currently no, or limited, voice in the football pyramid.

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).

Capital, I argue in ‘The Code of Capital: How the Law Creates Wealth and Inequality’, is coded in law.1 Legal coding is a process that adapts and molds formal law over time, often without explicit ex ante sanctioning by a legislature or a court. Several characteristics of formal law make it susceptible to coding, including its inherent incompleteness, the strong endorsement for private autonomy, and decentralised access to a state’s consolidated means of coercion.2 Would a progressive European Code of Private Law (EPL-code), as proposed by Hesselink, alter any of this and what would it take to ensure that the principles enshrined in this code would in fact be realised? These are the questions I will address in this short essay.

Martijn Hesselink proposes a ‘Progressive code of European Private Law’, which would seek to tame the ‘legal steroids’ that private law modules and savvy crafting by well-paid lawyers currently offer to to global capitalism. The present comment engages with one of the core characters of the proposed code, namely that it should ‘consist of fundamental principles (not detailed rules)’. Rather than taking up the impossible task of suggesting (or speculating) what the principles should be, the paper aims to further operationalise certain aspects of what they should – or should not – do. To this aim, the role of principles is assessed in relation to attempts to ‘code for the 99 per cent’. Hence, the paper revisits certain mechanisms of so-called weaker party protection or social law through Katharina Pistor’s coding analytics (priority, durability, universality, convertibility). Private law principles and their legacy are part of the resistance, or backlash, against social coding. The paper concludes that a code of principles that aims to be progressive in the sense Hesselink highlights should consider at least two requirements: first, principles should be expressly formulated in such a way that they do not stand in the way of progressive detailed rules; second, they need to broaden the private legal imagination. It is on this account that ‘any amount of regulatory private law could not achieve what a (constitutionalised) code of private law principles could accomplish’.

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.

Martijn Hesselink proposes a new European charter of private law that would correct the deficiencies in private law identified by Katharina Pistor. While Hesselink aims to achieve radical reform by way of radical democracy, this article argues that radical democracy is unlikely to realise a radically progressive vision of private law. Citizens of wealthy, post-industrial democracies lack certainty about both the material consequences of reform and the demands of justice. Because their caution renders them averse to far-reaching, bundled reform packages, public discourse in post-industrial societies as we find them is more likely to produce incremental than radical substantive reform.

This comment discusses on how legal change can originate from society and the private sphere. It argues that Hesselink’s perspective is too strongly oriented on public sphere and ignores the societal sphere including its transformative potential. The comment centres the concept of private law institutions and institutional change that is a core element in both Katharina Pistor’s diagnosis on coding of capital in law and Martijn Hesselink’s related proposal to reform private law institutions through a comprehensive principle-oriented code. The comment first introduces the idea of legal institutionalism in Pistor and Hesselink to then add to it an additional perspective from a new institutional theory that identifies the transformative potential within the social institutions themselves. It is then argued that the law, rather than being in need of radical change, needs to be radical in being responsive to the societal institutions. The contribution concludes by outlining on the basis of three examples – contract, tort and private international law – how societally responsive private law institutions can look like.

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.

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’.

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.

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.

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 publication in 2017 of Dawn of a New World (I B Tauris) confirmed Rein Müllerson as one of the great international lawyers of his generation. His career is deeply marked by the recent history of Europe. He was a young director of the Department of International Law of the Academy of Sciences of Moscow in the 1980s, doubling down as legal advisor to Gorbachev during the decisive years of perestroika and glasnost. It is not an exaggeration to say that, in those hectic days, Müllerson saw history unfolding from the machine room of the Kremlin. In the 1990s, after a brief but very intense period as secretary of state of the newborn Estonian Republic, Müllerson joined academia again as professor of international law at the LSE first, then at King’s College. His inexhaustible stamina allowed him to wear a second hat as adviser on human rights to the United Nations, spending quite some time in Central Asia. After his retirement from King’s College, he returned in the 2010s to Tallinn as dean of the newly established School of Governance. The following text is the result of a number of conversations, some in Tallinn, others forced by circumstances through video connection. The range of issues is as wide as Müllerson’s interests, hopefully offering the reader views which are out of the common road. Not only because of the multiplicity of perspectives he is privy to, thanks to his extremely rich academic and personal trajectory, but also because of his commitment to diversity and pluralism.