European transnational private law – on the surface and in legal culture

Abstract

The article is a comment on the concept of European transnational private law. It looks at the issue from the perspective of the receiving legal orders, suggesting that in a normative assessment of the European impact it would be fruitful to use the distinction between the surface level of law and legal culture as a conceptual instrument. Both the nature and the timeframe of the impact are different on the legal-cultural level, and in the long run, it might even be the most important one. As the impact of European private law varies depending on the subject, the issue and the receiving order, a normative assessment of it has to be contextual.

1. European transnational private law – a broad perspective

The concept of ‘European transnational private law’ has recently entered the discourse on the effects of European private law. An impressive European research project on the external role of EU private law has decided to use this concept to encompass its findings. Included in the title of the closing publication, the concept carries the whole approach of the volume. I will here discuss some aspects of the concept of ‘European transnational private law’ in the light of the rich contributions of this publication. ¹

The approach of the book on the foundations of European transnational private law is both concrete and conceptual. Relying on a number of sectoral or issue-specific studies, the editors and main authors propose the use of the concept in the title to cover the variety of processes that should be studied when analysing the role of European private law beyond the EU internal market.

The main novelty in this conceptual suggestion is the use of the term ‘transnational’, taken from the general discourse on transnational law. ² This conceptual proposal works well in the present context. Its function is to open up the discourse towards a multitude of elements that should be included when analysing the external role of European private law. It includes and even emphasizes the role of regulatory private law as compared to more traditional forms of private law. ³ In line with the tradition of the discourse on transnational law, it covers not only formally enacted law, but also, and in an important role, various forms of private normative activity. It does not discuss only law that moves across borders, but also norms that are obeyed voluntarily in transnational settings. In other words, it is pluralistic and transcends the dichotomy law/non-law, ⁴ challenging traditional doctrines of legal sources. ⁵ Finally, it recognizes the many actors and forms of interaction within European transnational private law: external receivers may in turn influence European approaches and multilateral actors may be involved. The transnational spreading of legal requirements may take place, for example, through global value chains. ⁶

The choice of such a broad concept to designate the field of the present study works well. ⁷ Speaking about European transnational private law allows one to paint a realistic picture of a diverse and messy field. A large variety of examples of interaction and influence is presented in the concrete chapters of the book.

The broad approach, however, comes with a price. ‘European transnational private law’ covers almost anything that includes a normative interaction in some form between the EU and the outside world. The book therefore cannot and does not aspire to give definite answers concerning the nature of this interaction, but rather wants to develop methods and concepts for further research and debate. It invites us to continue the discussion and to add new perspectives to the analysis.

Therefore, my attempt to focus here on some other aspect(s) of the theme does not imply a criticism of what the authors have skilfully presented. It is only an attempt to answer the call for a continuation of the debate.

My particular angle is the perspective of the receiving legal order. In an approach that highlights also a normative assessment of the effects of European transnational private law, one should focus on the role and impact of the European elements in the receiving society and its legal order. In such an assessment, I will argue, it is useful to distinguish between instrumental surface-level effects and the deeper impact on a legal-cultural level.

2. Looking from the normative perspective of the receiving legal order: contextually critical

The picture of European transnational private law drawn in the book has many dimensions. The collection of essays presents several different pictures. I will here add one perspective to the discussion of the impact of European transnational private law by looking at its effects on various levels of the receiving legal orders. This may inspire some additional questions for the future research that the authors envisage.

A discussion on the impact of European transnational private law on the receiving legal orders naturally includes a normative dimension: does European private law appear as a hero or a villain in the transnational narrative? The research project, within which the book has been produced, has previously attempted to produce a normative assessment of the external reach of European law. The question of whether the EU acted as a gentle civilizer or neoliberal hegemon was put in the foreground. ⁸ Also in the present book some contributors have chosen to take a normative stance on the analysed phenomena, but as a whole the book includes a normative assessment of the development only as a side element. ⁹ This is a conscious choice. The authors expressly note that a thorough normative perspective on European transnational private law requires further research in the various sectors involved. ¹⁰ This does not mean that normativity is absent in the presentations. It is hardly possible to analyse the issue in a completely non-normative way.

I realize that focusing only on the effects on the receiving legal order in a way contradicts the idea of a transnational law, as this concept does not only cover one-way movements of legal elements, but recognizes interaction in many directions. Transnational law cannot be distilled into just a relationship between a sending and a receiving order. The Brussels effect may take place without any formal changes in the receiving order at all. Still, in the normative perspective it is useful to discuss the effects on the receiving orders and societies outside of the EU. ¹¹ The assessment of the impact of European transnational private law requires understanding of what changes it brings about in the receiving legal orders and the receiving societies. This kind of perspective also seems implicit in many of the contributions to the book.

By receiving legal order, I mean any legal order outside the EU, on the development of which EU private law in some formal or informal way has an impact. The concept is used neutrally without normative implications concerning possible weaknesses of the receiver. Whilst some, perhaps the majority, of the receiving orders indeed are former colonies or otherwise in a weaker position, the Brussels effect and other regulatory impact may affect well developed and economically strong countries as well.

So, does European transnational private law from the point of view of the receiving order appear as a basically positive process of learning and implementing useful regulatory inventions or does it rather function as a neoliberal market-opener for foreign (European) actors, even as an instrument of neocolonialism? As the book indicates, there is no single answer to such general questions. For both the mentioned effects, and other ones as well, one can present examples in which that effect dominates the scene. All the alternatives appear as true, depending on what sector and on what issue, and even on what particular narrative, one focuses the searchlight. The above-mentioned variations in the role and strength of receiving orders also require contextuality in the normative assessment.

In this respect, the adopted notion of European transnational private law poses a certain challenge. As Rodrigo Vallejo thoughtfully shows, the approach should primarily be understood as a form of jurisprudence of process. ¹² This means that the picturing of European transnational private law should focus on the processes in which the role of European private law appears. In principle, it is easy to agree. This focus on the process(es) is certainly important if one aspires to reach a realistic description of the development. And it is essential also with regard to the normative assessment of the impact. The role and influence of the senders and receivers in the process is a circumstance to take into account when assessing the value of the outcome.

However, a normative assessment of the impact of European transnational private law from the point of view of a receiving order cannot focus on the processes alone (even though they are important). The substantive content and societal effects of the rules and normative structures that European transnational private law has contributed to in the receiving legal order have to be included in the evaluation. ¹³ A critical analysis must relate to the previously existing norms and societal relations as regards the issue at hand in the receiving order, in order to be able to judge whether the changes have improved or impaired justice in the studied society. In other words, the analysis must be contextually critical.

Such an analysis may, in constructing the context of the receiving order, focus on various levels of abstraction and various timeframes. In the following, I will look somewhat more closely at the ways in which one may construct the context of the receiver.

3. Impact on what level of law?

Legal changes can be analysed with the help of various conceptual tools and taxonomies. The breadth of the concept of European transnational private law requires the elaboration of such analytic tools. In order to deepen the approach and to draw a full picture of what is included in European transnational private law, the book offers several taxonomies of the studied phenomenon. Here I would like to mention, in particular, Anna Beckers’ and Rodrigo Vallejo's contributions to the ‘bases’ of European transnational private law.

Anna Beckers approaches her subject through an analytical lens that consists of three conceptions of private law: the ‘formal positivist’, the ‘regulatory’ and the ‘societal’. ¹⁴ The two first ones hardly need further explanations. The third one, the ‘societal’ conception of private law, focuses on law-making by and legal reliance on non-state actors – paralleling the already long-established concepts of proceduralization and reflexive law. ¹⁵

Whilst the ‘nature’ of the transnational norms is the determining element in Beckers’ taxonomy, Rodrigo Vallejo focuses on the mechanisms for reaching a transnational effect of European private law. ¹⁶ He proposes a taxonomy for the study of the foreign reach of EU law, with five categories: (1) unilateral means of foreign reach, (2) bilateral means through agreements, (3) multilateral means through international governance institutions, (4) societal means through private ordering and (5) collateral means through legal transplants and gradual processes of legal convergence. This taxonomy reflects the jurisprudence of process that he advocates.

To these analytic tools, I wish to add a concept pair that may be useful when assessing the impact of European transnational private law. I draw on an analysis by Kaarlo Tuori of the multi-layered nature of modern law. This well-known analysis has proven to be useful in many contexts. It shows how different elements of the law change through different mechanisms and within different timeframes.

Tuori distinguishes three levels of law. ¹⁷ According to him, much of the visible legal activity takes place on the surface level of law. Legislation, cases and other concrete legal materials meet the surface spectator of law. On this level, one encounters the day-to-day legal changes. Beneath the surface, however, there are deeper layers that function both as preconditions and limitations on what may happen at the surface level. The level of legal culture does not change at the same pace as the surface, but develops through slower mechanisms. Sedimentation from the surface slowly changes the legal culture. To these two levels, Tuori adds a still deeper level, the deep structure of the law that includes the basic common features of what can be called modern law. This level is (hopefully) even more stable than legal culture in general.

What I find essential in this context is the realization that there are cultural layers beneath the regulatory surface that change through other mechanisms and at a slower pace than the surface does. I will therefore use the concept pair surface-level law/legal culture in my further analysis. I will not discuss the possible usefulness of distinguishing several cultural layers, like the deep structure.

With regard to European transnational private law is seems fruitful to take into account the differences in mechanisms and timeframes between the movement of surface-level legal decisions and reasoning and the impact on deeper levels of legal culture. The examples analysed in the book seem to be of both kinds. Some authors focus primarily on how concrete regulatory solutions are forced on receiving societies – either directly or through the Brussels effect – whilst others are more closely looking at legal-cultural effects. The concept pair does not imply an either/or dichotomy. Legal measures often have both a surface-level and a legal-cultural impact, but through different mechanisms and in different timeframes.

I realize that ‘legal culture’ is a vague and many-sided concept. It is certainly impossible to define precisely, and it is not necessary to do so. It is sufficient to note that ‘the legal culture represents the memory of the law and keeps alive the connections to the past of law’ and thereby ‘calms down the storms of the surface’. ¹⁸ Tuori includes in his description of legal culture methodical elements, general doctrines, conceptual elements and normative elements (general legal principles). ¹⁹

The taxonomies of Anna Beckers and Rodrigo Vallejo that I mentioned before do not directly reflect the surface/culture concept pair that I propose to use. The relationship between these taxonomies and the concept pair could be described as follows.

As Anna Beckers’ ‘formal positivist’ law comprises the body of ‘classic’ private law, one might expect legal-cultural issues to play a more dominant role in this box, whilst ‘regulatory’ private law typically would be packed with surface-level detailed rules and decisions. The focus of ‘societal’ private law on private law-making, like standardization, can also be expected to cover much detailed private ruling on the surface-level. These characterizations of Anna Beckers’ three conceptions, however, only suggest prima facie centres of gravity. Obviously, formal positivist law also contains many detailed rules that can be changed without any mark of sedimentation to the cultural levels, and, on the other hand, the growth of regulatory and societal law certainly has an impact on regulatory culture, in addition to the surface-level rules. The surface/culture concept pair, in other words, is applicable within all three boxes of the taxonomy of Anna Beckers.

A similar relationship prevails between the surface/culture concept pair and the taxonomy offered by Rodrigo Vallejo. Clearly, all his five groups may include both surface-level and legal-cultural impact on the receiving order. Perhaps the four first mentioned in the short run mostly move surface-level rules, but these might lead to legal-cultural sedimentations in the long run. Processes of legal transplants and legal convergence, the fifth group, may be more directly connected with legal-cultural changes, but they certainly move surface-level materials as well.

So why do I find the concept pair useful in addition to the illuminating taxonomies already presented in the book? I believe it can facilitate the understanding of the different mechanisms and timeframes, through which European transnational private law develops. It also inspires new questions in the normative perspective. An assessment of the legal-cultural impact of European transnational private law must obviously be based on partially different questions than an assessment of surface-level changes.

For example, when discussing regulatory and societal private law, the concrete regulatory impact on the surface-level of a studied measure easily comes to the foreground. The focus of the assessment then lies on instrumental reasoning related to the goals and the means of the measure, and to how the goals have been fulfilled and the means have worked in concreto in the receiving legal order. Such discussions naturally must be very focused on sector-specific and even issue-specific effects. Whilst instrumental arguments would dominate the surface-level assessment, legal-cultural changes add other questions to the assessment. Such changes, for example, should also be evaluated with regard to how they might endanger the special features and achievements of the local legal culture.

I will in the following present some examples of what kinds of questions the focus on legal culture will bring to the table in the analysis of European transnational private law.

4. Legal-cultural transnational impact

The obvious starting point for a discussion on the legal-cultural perspective of European transnational private law is to look at the legal remnants of colonialism, at the movement of the legal culture of the colonial powers to other parts of the world – as Anna Beckers does when she treats the colonial transfers as the first category of transnational reach of European formal positivist private law. ²⁰ Many former British colonies belong to the common law world, and continental rulers have managed to export their legal culture as well (in addition, some countries have adopted European-like codifications even without colonial ties). ²¹ This large-scale and long-term impact of (some) European legal systems – described by Pia Letto-Vanamo ²² – has put the deepest European mark on the receiving legal orders. Even though the analysis of European transnational private law, as performed in the book, focuses rather on the present than on history, it is clear that the historical background often offers a particular inroad for contemporary European rules. In his analysis of the external dimension of European consumer law, for example, Hans-W. Micklitz shows how the movement of law to external legal orders is related to the colonial past of those orders. ²³ European rules implemented in the law of a former colonial power might be adopted by former colonies just as an expression of a continuing tendency to follow the legal development of the colonial power. I will not discuss and assess these kinds of reception, much debated within the confines of comparative law and legal history. It is only worth noting that such earlier waves of legal-cultural impact may greatly affect the ways in which new transnational elements are imported and included in the receiving orders and the assessment of the resulting legal-cultural changes. Decolonial comparative law and decolonial legal history are analysing such processes from the point of view of the receiving legal orders. ²⁴

When describing and assessing the impact of contemporary European transnational private law on the level of legal culture, the questions to be asked relate to broader conceptual, methodological and structural features of the receiving legal order. Such changes may be achieved along various paths. I will here note a few.

First, sometimes a legal-cultural impact can appear as the main object of transnational movement. This might even – in Kaarlo Tuori's terms – reach into the deep structure of the receiving order. For example, as is well known, the EU drives an agenda to strengthen the respect for rule of law and fundamental rights in the receiving legal orders. Even though this is often not at the core of private law, it might still bring important issues on the table when assessing the impact of European transnational private law. A look at the deep-structural layers of fundamental rights issues inspires new questions related to the role and substance of these rights in relation to private law. For example, one might ask whether the European legal-cultural shift in the direction of giving fundamental rights a direct role in private law relationships ²⁵ can have a transnational impact on legal reasoning in external legal orders, and if so, how such an impact should be assessed. A topical issue in this area is the question whether Europe and European private law can ‘become a new motor for tort law climate-change litigation’, as Vibe Ulfbeck hopefully concludes. ²⁶

Secondly, the legal-cultural changes may be a more or less intended long-term consequence of the moving of surface-level legal materials. As I noted earlier, regulatory and societal private law brings in many kinds of new surface-level rules and decisions into the private law discourse. These rules are often expected to have an effect on legal culture as well. In fact, the growth of regulatory private law and of proceduralized regulation techniques are already as such important legal-cultural changes. The supervisory and regulatory ethos that carries the implementation of regulatory measures is a legal-cultural feature that also greatly affects the actual outcome of the reception of European transnational private law. The EU might promote the development of a ‘common supervisory culture’. ²⁷ In other words, an assessment of the impact of European regulatory measures cannot bypass the legal-cultural effects on regulatory and supervisory cultures.

Thirdly, in yet other cases the legal-cultural effects of surface-level changes appear more as an unintended by-product of the surface-level developments. This is the case with regard to much of the impact of EU law on substantive legal culture, as it appears in the leading concepts, principles and structures of law. It is well known how European rules challenge traditional national private law edifices in the Member States and much of the critique against the acquis relates to its fragmenting effects on the national legal orders of the Member States. EU law may self-evidently have a similar impact on external legal orders. The European transnational elements may endanger the perceived coherence of the receiving legal order. The assessment of such fragmentizing effects of European transnational private law depends, among other things, on how essential one finds the so-called coherence of the legal order. ²⁸

Legal-cultural effects due to surface-level activity also may appear – for good or for bad – in changes in the prevailing contracting cultures. Without diving deeper into this issue, I just want to note the importance of this kind of legal-cultural assessment of contracting habits. In fact, here one may encounter a kind of reversed Brussels effect: US contracting models, requiring very extensive and detailed contract documents, are slowly pushing continental and Nordic less-cumbersome methods aside. Similar pressures, not necessarily leading to an improvement of the contracting cultures of the receiving orders in their societal environment, can certainly be found also outside Europe. But this is not primarily an example of European transnational private law, but rather of a US one.

The legal-cultural perspective might sometimes push one to take a broader look on the development of the legal order, beyond the immediate consequences of some more or less concrete pieces of law. When assessing the changes in the receiving legal order one should look not only at the direct legal-cultural impact of new elements, but also note the further development of other parts of the legal order caused by these elements. As the vivid discussion on legal transplants ²⁹ has shown, transplantation of foreign elements contains both an adaptation of the transplanted material to the new environment and an adaptation of the receiving order to the transplanted elements. In the words of a much-cited commentator to the debate, Gunter Teubner, a new element may function as a ‘legal irritant’ that ‘works as a fundamental irritation which triggers a whole series of new and unexpected events’. ³⁰ A legal-cultural assessment of the impact of European transnational private law has to take into account also these kinds of further effects. In the long run, they might be the most important ones.

Finally, when one seeks to assess the deeper cultural impact of European transnational private law, the assessment should not be content with a focus only on the legal culture of the receiving order. One has to include general cultural and societal aspects related to that order in the assessment. There is no clear line to be drawn between a legal-cultural and a socio-cultural assessment. What works in a European setting may function less well in the particular context of the receiving legal culture, but the challenges may also more broadly relate to features of the societal culture of the receiving order. ³¹

To mention just one very concrete example: the regulation of unfair commercial practices may require different tools depending on the nature of the culture to be regulated. The level of trust in businesses and authorities, the ways in which communications are read and understood, the prevailing rationality patterns, the role of commercial communications in decision-making and the dominating values and preferences may affect the success of and the need to regulate various commercial practices. ³² As it is not easy even within the EU to reach a harmonization of the rules on commercial practices that really fits all the Member States, the export of such rules outside Europe obviously runs an even greater risk of leading to dysfunctional results. A socio-cultural evaluation of the impact of European law on commercial practices would look very different depending on the features of the receiving order. Already within such a narrow issue-specific assessment, there are room for normative narratives pointing in different directions.

These are a few more or less concrete examples on issues that should be raised within a legal-cultural assessment. Others may certainly be added.

5. Summary: contextual assessment

The book presents an impressive account of examples of the external reach of European private law. In addition, it advocates the adoption of a new concept to describe the phenomenon. This concept, ‘European transnational private law’, is broad enough to cover the various ways in which European private law is in interaction with and has an impact on the rules that are applied or followed outside the Union. This means, however, that the concept covers a multitude of phenomena. A normative assessment of the impact of European transnational private law cannot be made on the level of such a comprehensive concept only. It has to focus on smaller sector- and issue-specific narratives.

Even though, as Rodrigo Vallejo underlines, a scholarly analysis of the development should go further than presenting ‘a mere collage of varied and interesting journeys into different domains of EU law beyond the frontiers of the internal market’, ³³ an assessment of the functioning of detailed regulatory interventions can hardly avoid producing a rather fragmented picture. Small narratives of legal change may proceed in various directions.

Methodologically, this implies a stronger socio-legal focus on concrete societal and legal developments affected by European private law in the receiving orders. A convincing normative analysis of the impact of European transnational private law has to be contextually critical.

The contemporary narratives of change may be fuelled in various ways. Some external impact is an expression of European legal and economic power. As the discussion concerning the possible Brussels effect shows, however, this is not necessarily all bad. Changes achieved due to the power of Europe may sometimes be regarded as improvements of the law and practice of the receiving order. One has to look at the substantive content of the changes to reach a more definite assessment. It is important, though, that the assessment is made with recognition of the legal and societal culture of the receiving order. The long-term legal-cultural effects should not be forgotten.

Sometimes the main drive for a use of the transnational European impact comes from the receiving legal order. A learning law needs to learn also from foreign experience, and European legal experience may be considered valuable outside Europe. It may be that (parts of) European law or the law of some European national legal orders enjoy a particular reputation as being of high quality and therefore are used as sources of cross-border legal learning. This perception of quality may relate to the structure of legal thinking (the systematic rigour of German law may appeal to some, whilst other prise the advantages of a pragmatic common law), to the appreciation of the business culture behind the rules or to the acquired expertise in particular fields (such as English maritime law). EU law proper may appear as (relatively) advanced, for example, with regard to the building of the internal market and the regulation of particular businesses or market areas (such as digitalization), or with regard to particular issues, like product liability. ³⁴ Again, answering the question of whether the learning outcomes really appear as good as hoped for requires both a substantive issue- or sector-specific instrumental analysis of the changes in the context of the receiving order and a legal-cultural assessment of their long-term effects. For example, the real success of the received consumer laws, like the Product Liability Directive, has been doubted, as they have led to amazingly low degrees of litigation. ³⁵

In this context I cannot avoid noting that in the future, the EU encounters a possible recipient of European transnational private law of a very different status than, for example, former colonies. After Brexit, the UK is a new external actor that may follow quite different paths than other recipients. On the one hand, it is still on both legal-cultural and surface level in many ways very close to the EU, but at the same time it is geared towards developing its own path and legally and societally better equipped than most other possible recipients to follow such a policy. Brexit certainly requires a new chapter in the coming books on European transnational private law. For this book, it has been too early to analyse the consequences of Brexit.

As indicated above, a legal-cultural assessment also requires looking at the socio-cultural effects of the scrutinized transnational elements. Broadening the assessment of the impact of European transnational private law to the socio-cultural sphere brings the challenges to a new level. To be clear, I am not suggesting that this level should have been thoroughly discussed in the book. The book offers a map and a concept, European transnational private law, with the help of which one can orient in the jungle of legal movements across the borders of Europe. This mapping offers conceptual tools, among other things, for a normative assessment of the development. As the assessment has to recognize effects and challenges both on the socio-cultural and the legal-cultural level as well as on the surface of law in each affected legal order, it can hardly result in one grand narrative on the effects of European transnational private law.

Many kinds of sector-specific and even issue-specific normative narratives can be told within various receiving legal orders. Much further research can be done. The Foundations of European Transnational Private Law certainly succeeds in presenting a well-thought-out picture of the foundations on which future research can build.