Abstract
The Foundations of European Transnational Private Law is at first glance a book about the ‘Brussels effect’. While this is an important and relevant topic, the book offers far more than that. Rather it offers a sometimes explicit and sometimes implicit vision of global society. A vision of where global society is heading and not least of where global society should be heading. A vision hidden under the ambition to develop the foundations of a new concept of transnational private law rooted in European legal traditions and practices.
Keywords
Introduction
In a nutshell The Foundations of European Transnational Private Law is a book about the ‘Brussels effect’, 1 the intended or non-intended effect of EU law beyond its own jurisdiction, and, as the title indicates, particularly in relation to private law. In this context, the point of departure is the four concepts of ‘European’, ‘transnational’, ‘private law’ and ‘foundations’.
The term ‘European’, it is made clear, refers to the EU legal order and European nation state legal orders, in particular but not only the legal orders of the Member States of the EU, and thus the broad host of legal traditions and practices providing the fabric of European law. Hence, while not the core topic of the book, the point of departure seems to be an understanding of the European legal space as characterized by a symbiotic relationship between the EU legal order and the legal orders of nation states. A view which indeed can be historically confirmed as modern nation states, understood as a particular type of legal ordering, and modern forms of transnational legal ordering emerged simultaneously from the early 19th century onwards, with both forms of legal ordering expanding massively in the two centuries which have passed since then. More of one, in other words, implies more of the other, thereby making national and transnational legal ordering conjoined twins 2 – a logic which can be particularly observed in the European context as the continued expansion and deepening of the EU legal order has resulted in stronger, more stable and in societal terms more all-encompassing Member State legal orders. 3 This co-evolutionary logic is conditioned by and manifested in a broad host of intermediary institutional formations such as Comitology, Open Method of Coordination and Regulatory Agencies, among others, serving as ‘transmission belts’ or ‘transplantation platforms’ between the parallel universes of the EU legal order and Member State legal orders. 4
The concept ‘transnational’ is invoked as a heuristic tool by the editors and contributors in order to break open the settled world of nation state-based law by ‘seeking to overcome established cleavages and disciplinary silos within contemporary legal studies’. 5 Like the vast majority of the expansive literature on transnational law, the book does not seek to substantially determine what transnational law is in its own right, but rather to deploy the concept of transnational law in order to rattle conventional (inter-)national law categories. Hence, rather than a determining concept, the concept of transnational law serves as a creativity- and imagination-enhancing concept. The perspective advanced, however, leaves open the question of whether EU law is better defined as a particular type of global law rather than transnational law. If global law is ‘defined as a legal phenomenon that, in principle, is unlimited in reach’, 6 then legal appearances such as the Corporate Due Diligence Directive, excellently discussed in the final chapter by Jaakko Salminen, Mikko Rajavuori and Klaas Eller, might rather be seen as an expression of global rather than transnational law.
The term ‘private law’, moreover, is intended to go beyond the traditional focus on property, contract, tort and personhood, by focusing on regulatory private law. Here the focus is mainly on the regulation of services in the context of the EU legal order, and their constitutionalization through the four freedoms. Another element is the encroachment of regulatory private law logics into a string of different legal domains such as competition law and public procurement law, 7 as well as domains with (potential) extraterritorial effects such as food safety law and corporate due diligence law. It is this which makes the effects of ‘European private law’, albeit to varied degrees, global. EU law is not only entangled with national law, Member State national law and also non-Member State national law, but also a plethora of private bodies. ‘European private law’ thereby de facto becomes a global assemblage consisting of a multitude of dimensions characterized by variable degrees of coherency and complementarity.
As for the use of the concept ‘foundations’, the editors state that this ‘is a deliberate choice’, 8 while Anna Beckers proceeds by stating that the ambition is to develop ‘the foundations of a new concept of private law’. 9 As also testified in the book's multiple references to legal literature where the term ‘foundations’ appears in the title, this is a common approach in legal scholarship. From a social theoretical angle this is, however, unusual. From a social theory perspective, foundationalism, although the associated term ‘identity’ has become rather fashionable in various ideological discourses in recent years, 10 has been considered the central thing to avoid for the past many decades. No matter if one subscribes to Foucault's theory of the subject, Derrida's poststructuralism, Habermas’s theory of communication, Luhmann's theory of social systems or any other major social theoretical endeavour as developed from the mid-20th century onwards, the key ambition was to develop a post-metaphysical theory, that is, a theory devoid of foundationalism, understood as fixed ontological categories. In contrast, the focus was on contingency, evolution, fluidity and process and, in legal terms, proceduralism. 11 The use of the term ‘foundations’ in the title of the book thereby indicates that this book is articulated in a first-order level of analysis, that is, it is a book about how legal scholarship observes (private) law, and not a book about how, as a second-order analysis, legal scholarship itself is being discursively observed. Hence this is a book for lawyers about law and as such it does a wonderful job.
The book, however, has the potential to go far beyond the internalistic legal perspective. In fact, the book provides crucial insights into the constitution of the world as such, as it provides elements of a particular world view distinct from the world views currently in fashion in large parts of the world. Hence, the editors and contributors are putting their light under a bushel in the sense that they are far too modest when it comes to the reach of their insights – insights, which, however, only become visible if one switches from a first- to a second-order level of observation, that is, from an internalist to an externalist focus on the law. From a second-order perspective, the book can be seen as partly explicitly and partly implicitly advancing a particular vision for the ordering of the world, a vision where ‘Europe’ formally is not the centre but where ‘Europe’ has something important to offer to the world. 12 As such the book implicitly offers a particular imaginary of the future of the world which differs decisively from competing visions of the future.
Three visions of the world
As noted, if one changes the perspective from the internalist view on (private) law and instead seeks to observe its external societal effects by taking the framework and perspective developed in the book ‘out in the world’, it could be considered as providing substantial elements of a vision of the world as such. Concretely, the book positions itself in an ideal-type manner as an alternative to two other currently dominant imaginaries of the future of the world.
Metaphysical philosophy of history: ‘Armageddon’
The Apocalypse is the final book of the New Testament and Armageddon is here conceived of as the last battle between good and evil before the Day of Judgement. This imaginary of the last battle has played a central role in the metaphysical philosophy of history. In Hegelian thought, for example, it was transferred into the battle between land-based and sea-based empires. Georg W.F. Hegel himself conceived of world history as a struggle between these two forms of power, predicting the eventual victory for the sea-based empires, as most notably expressed in the dominant position of the commerce-driven United Kingdom in the post-Napoleonic world, which he could observe at the end of his own lifetime. 13 The distinction was furthermore appropriated by Carl Schmitt, as apparent in Land and Sea: A World-Historical Meditation (Land und Meer: Eine weltgeschichtliche Betrachtung), published in 1942. Schmitt viewed the battle between France and the United Kingdom in Napoleonic times and in his own contemporary times between Germany and the United Kingdom and later the United States as an affirmation of the salience of the distinction, implicitly assuming the victory of the sea powers while also expressing regret for the loss of the nomos, the land-based groundedness of the world. 14 The standoff between the Soviet Union and the United States during the Cold War might also be analysed on the basis of this distinction, just as ideologists promoting ‘the new American Empire’ post-September 11 2001 re-cast the distinction, though turning Schmitt upside down as the sea-based world was conceived of as not only representing the winning part but also the normatively superior world. 15
In today's world the distinction might be reappearing as an imaginary of a final battle between land and sea, an imaginary where the triangular alliance between the central powers China, Russia and Iran, three states with a deeply ingrained imperial heritage, as well as other associated powers representing the land-based empires vis-à-vis the US-led alliance encircling and containing the land-based empires from Washington, DC to Tokyo then through Seoul, Hanoi, New Delhi, Tel Aviv, Brussels to London and back to Washington, DC. 16 This is a vision – or fantasy – which has notions of conflict, crisis and conflict of civilizations, zero-sum games and Caesarism at its centre, in a way resembling the metaphysical philosophy of history of Oswald Spengler as outlined in The Decline of the West (Der Untergang des Abendlandes) 17 – a vision which, moreover, seems to become self-defeating as the United States might be in the process of becoming the sort of power it claims to be fighting against. To sum up: the Armageddon vision has the philosophy of history as its core scholarly discipline, its empirical object is world history and the medium of observation it relies on is metaphysics, with meaning found in the realm of conflict.
Empirical social sciences: ‘Brazilianization’
In the decades after World War II, modernization theory became the dominant lens to view the world through in the social sciences. In a reaction to the real-world metaphysical meltdown advanced by national socialism and other totalitarian movements, the social sciences became characterized by a turn to behaviouralism, positivism and rationalism. 18 In the thinking of modernization theory the evolution of the world was linear, and all parts of the world would go through the same stages of development, eventually ending in industrial society. Sweden and the United States were in this context conceived of as the ‘most advanced societies’, the sort of societies all other national societies eventually would converge towards and emulate, 19 a modernization world view embodied in the working practices of the World Bank, the International Monetary Fund and national development agencies assisting the wheels of history in achieving global convergence. The core scholarly disciplines articulating the modernization world view was economics, (macro)sociology and political economy in a largely US-American version. The empirical object they dealt with was social strata of individuals and the medium of observation was statistical data, with the meaning-giving objective being growth and socio-economic welfare.
From the 1970s onwards, however, the logic of convergence started to go in a different direction, thereby falsifying the hypothesis of modernization theory concerning Sweden and the United States representing the future of the world. Rather than Sweden and the United States, Brazil, a point also made by Ulrich Bech in the late 1990s, became the new paradigm society the world at large was converging towards. 20 ‘Becoming Brazil’ essentially implies becoming a society characterized by high levels of socio-economic inequality, manifest geographical imbalances in terms of socio-economic development, unstable political institutions, a highly charged political atmosphere, dysfunctional public institutions characterized by the incursion of private interests and the dominance of vested interests as well as a debilitated rule of law. 21 Today this sort of society is the paradigm case of national society in the world, with countries like Argentina, Columbia, Egypt, Indonesia, Mexico, Russia, South Africa and Turkey being prime examples. In World Bank parlance these countries are ‘middle-income countries’, and today some 75% of the world’s population live in middle-income countries – countries which are not rich but also not poor, not really democratic but not totalitarian, and characterized by entrenched levels of high socio-economic inequality, oligarchical power concentrations, flows of urbanization etc. 22 Hence ‘Brazil’ is the type of society which the majority of the world is gravitating towards, although in various degrees and with variation in the speed of convergence. The United States, for example, seem to be approaching Brazil status faster and more profoundly than, for example, Canada or the Nordic countries. In short: albeit with various degrees of intensity, we are all Brazilians now.
. Law: ‘Regulatory hegemony’
It is against the implicit backdrop of the above two imaginaries of the world that The Foundations of European Transnational Private Law develops elements of an alternative vision or imaginary of the world. An imaginary where the legal discipline and profession, in particular private law, is the core discipline defining the world. A world where the empirical object is legally articulated and condensed norms. The medium of observation through which the world is observed is regulatory private law and the objective is to achieve a coherent set of globally applied norms 23 – norms which tend to be considered of a European origin and essentially to advance a view of European, in particular EU, (regulatory private) law as a ‘global public good’ as expressed in regulatory initiatives such as the EU Artificial Intelligence Act 24 , The EU Data Act, 25 The EU Corporate Sustainability Due Diligence Directive, 26 The EU General Data Protection Regulation 27 and the EU Deforestation-free Products Regulation, 28 among many others. 29 Hence the vision is one where law rather than power rules the world and where the legal discipline and in particular European private lawyers rule the world based on coherent and rational legal interventions. 30 This vision is implicitly and at times also explicitly present throughout the book. Anna Beckers, for example, speaks of a ‘strategy of “Europeanising” successful international regulatory frameworks’ 31 while arguing that ‘the EU is increasingly piggybacking and instrumentalising private actors with a view to exporting its own values and policy objectives.’ 32
The vison the book advances is a sympathetic one as the intentions are clearly aimed at ‘doing good’ for humanity through a substitution of power with law. 33 But this vision of course also begs the question of where the blind spots are and also to what extent the EU has the power to push it through – the power to paradoxically push through a power-free world. As for the blind spots, the elephant in the room seems to be the spectre of (neo-)colonialism. The term ‘colonialism’ appears 12 times in the book and is also specifically addressed in the very strong contribution by Pia Letto-Vanamo. Yet one can go further than this, for example by considering ‘European Transnational Private Law’ as a particular form of post-imperial law simultaneously serving as a functional equivalent and a normative dis-equivalent to imperial law as manifest in both land and sea-based versions of empire. 34
The functional equivalence but normative dis-equivalence thesis to the link between imperial law and ‘European Transnational Private Law’ can be illustrated in relation to the EU's regulation of global value chains, most notably, though far from only, expressed in the Corporate Sustainability Due Diligence Directive. Colonial law and GVC law share the function of structuring the extraction, transfer and incorporation of meaning components with economic value from one legally structured context to another. 35 Normatively, the fundamental difference between colonial law and GVC law is, however, the formalistic switch from a reliance on asymmetric to symmetric norms (for example, from civilized/non-civilized, Christian/non-Christian and European/non-European to the formal equality of contracting in contemporary value chains), thereby putting the spotlight on the empirical question of to what extent this change has any material effects. Or, differently put: do legal norms, their form and substance, actually ‘matter’?
Perspectives: The battle of the worlds and beyond
A possibility of a ‘European rescue of the world’ is being reinforced by the fact that at a second glance bridges might be built. The tensions between economics and law, between instrumental rationality and norms, remain a constantly recurrent issue, 38 and yet the original vision of the largely economics-based modernization theory and the vision inherent to The Foundations of European Transnational Private Law is not as far apart as one might expect at first glance. The only substantial difference seems to be that ‘becoming Sweden’ or ‘becoming the United States’ has been replaced with ‘becoming Europe’. As for metaphysical philosophy of history, it not only comes in various extreme right- and left-wing versions but also in a liberal version as expressed in the idea of the end of history as developed in Alexandre Kojève's reading of Hegel 39 and its later appropriation by Francis Fukuyama, who directed the Hollywood version. 40 A liberal version of the end of history which might be seen as fully compatible with the vision of the world inherent to The Foundations of European Transnational Private Law, a world characterized by the realization of Immanuel Kant's quest for perpetual peace. 41
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Funded by European Advanced Gant ‘Global Value Chain Law: Constituting Connectivity, Contracts and Corporations (GLOBALVALUE)’. Grant agreement ID: 101054237; H2020 European Research Council.
