European solidarity and the imaginative ordering of markets

Abstract

This article identifies Transnational Private Law (TPL) as those legal processes from beyond the State that bring into being, sustain, organize and stabilize markets. This law has a distinctive ethic centred on innovation, imagination and solidarity with strangers. It also only has authority where its value exceeds that provided by national law. TPL is insufficiently robust to deliver this reliably. Consequently, it relies on an associate, ‘Europe’, to provide ethical and institutional safeguards and authority. Ethically, the European ideal of, identified by Kristeva, as transformation and valuing human singularity provides a robust moral compass for TPL. Institutionally, EU law is the best proxy to institute and regulate it. However, in line with what has been said, EU law only prevails where it is addressed to this Europe ideal of freedom and the value supplied by it exceeds the costs of displacing the relevant national law.