How private is European transnational private law?

1. Classification debates

European transnational private law is an offshoot of European regulatory private law. A critical analysis of European transnational private law as a putative new field of law presupposes a critical analysis of the credentials of European regulatory private law. Let me present my analysis in the framework of the systematization of law. ¹

During the 20th century, regulatory interventions by the state in the domain of private law and the socially oriented legislation of the incipient welfare state caused increasing havoc in the traditional systematization; not even the basic borderline separating private from public law was respected. To defend their positions, private and public lawyers invented new categories of law: on the side of private law, branches of economic law (Wirtschaftsrecht), and on the side of public law, branches of special administrative law (besonderes Verwaltungsrecht). These were base categories which were supposed to comprise those allegedly private or public regulations which could not find an unambiguous place in the traditional systematization. Yet the location of, say, labour law or environmental law was far from unambiguous: should they be treated as subcategories of economic law or special administrative law?

Legal scholarship has played a central role in elaborating the law's overall system. This holds especially for Romano-Germanic legal cultures, but in common-law countries too, comprehensive classificatory schemes have usually originated in legal scholarship. This raises the following question: Do such schemes express the law's internal structure or are they to be understood merely as legal science's way of exposing the law? Are they part of the law or of legal science? Or, to put it in other words, do the classificatory schemes form part of the law, its internal system, or are they merely legal scholarship's device for portraying the law's unity?

The question is, in a sense, misleading. Legal scholarship is one of the legal practices that continuously produce and reproduce the legal order. Through its very results, such as schemes for systematizing the law, legal scholarship contributes to legal development. As a rule, the law's divisions are neither determined by the legislator nor decided on by the judges but proposed by legal scholars. However, after the scholars’ proposals have found general acceptance, the divisions form an integral part of the legal-cultural pre-understanding not only in legal science but also in other legal practices, such as lawmaking and adjudication.

The law's division into distinct fields is both a part of the law and a doctrinal construction of legal scholarship. Legal scholarship's contribution has sometimes been expressed through the concepts of legal order and legal system: legal scholarship creates a system out of legal order. In my conceptual framework, the dialectic between disorder and order is approached as a relationship between the levels of law: concrete normative material at the law's surface obtains its systematicity from legal-cultural principles, concepts and theories. Changes in the legal order's divisions are inaugurated by legal scholars’ interventions. But, of course, not all re-systematization proposals initiate a successful legal-cultural transformation. The fate of many, maybe most, of them is to become only footnotes in legal historiography. This seems, for instance, to have been the typical destiny of the various functionalist proposals of the last century's ‘progressive’ scholarship, such as the Columbia Law School plan of the 1920s to divide the law into the three major subcategories of political, business and familial relations, complemented by a fourth category of law administration. ² But one should be cautious of over-hasty conclusions. As is typical of legal culture in general, the pace of change in divisions of the legal order has been protracted. Established divisions may last for centuries, and sedimentation of a re-division may take a long period.

Interest in the law's differentiation into specific fields has not vanished or even diminished. On the contrary, we are witnessing a revival of classification debates. The focus, however, has shifted, so that 19th-century discussants would have a hard time in orienting themselves in present debates on such putative departments of law as social law, medical and bio-law, sports law, information law or communications law. Recent interventions are no longer concerned with the law's overall systematization. When labour law, some decades ago, waged its battle for independence, it was, at least on the Continent, still considered important to ponder its place with regard to the basic distinction between private and public law. Present discussants do not seem to be troubled by the location in the law's comprehensive system of the new fields (and disciplines) they are advocating. Instead of total coherence of the law, the aim is more modest: to bring about local coherence into a particular body of law.

The classification debates of the 19th and the 20th century focused on the national legal order, although international law, too, was usually included in the system. Present discussion of, say, information, communication or medical law is different, and the origin of the normative material no longer constrains the proposals or arguments. On the contrary, typical of the putative new legal fields and disciplines seems to be that they bring together norms of different origin; norms stemming from national, international and transnational sources. Other basic distinctions are disregarded as well, such as those between private and public or hard and soft law.

Transnational law in general and EU law in particular have played the part of troublemaker in classification debates. In its non-state origin, transnational law transcends the division into national and international law. It cannot be classified as either national or international law, although it is related to both. Transnational law also questions the black-and-white dichotomy of hard and soft law and adds shades of grey to the obligatoriness and non-obligatoriness of law. EU law ignores not only the exhaustive distinction between national and international and hard and soft law but also the division into private and public law, even when modified with the introduction of economic law and specific administrative law.

Introducing European regulatory private law or European transnational private law entails (re)introducing classification debates into EU law scholarship. The categories imply that, regardless of what EU law scholars have for decades maintained, the distinction between private and public law is not only applicable to EU law but serves a valuable practical or scholarly purpose as well. What has been called European regulatory private law would obviously be comparable to the economic law (Wirtschaftsrecht) which breached the systematics of the Pandektenrecht codified by the BGB and which was supposed to restore the comprehensiveness of the traditional systematization from the perspective of (national) private law. But what practical or scholarly purpose could be served by the introduction of the category of European regulatory private law or European transnational private law?

2. The point of classification

Ordering legal raw material, such as statutes or precedents, serves many purposes. Perhaps the most modest aim is encyclopaedic: to ‘store’ legal material and to provide legal actors, primarily legal professionals but sometimes even laymen, with simple means of finding the material they need. This aim can be satisfied by, for instance, alphabetical ordering of legal topics and corresponding legal material. Statute books and law reports, as well as legal digests, offer abundant examples of the diverse criteria by which the encyclopaedic function can be fulfilled. But classification may have more far-reaching objectives, too. It may expressly serve the legislator in a project of codification. The BGB is sometimes called the ‘little Windscheid’, which tells of the importance of the preparatory work of the German 19th-century Pandectists. Often enough, classification pursues pedagogical objectives, organizing the curriculum of university-based law studies. The structure of curriculum leaves its imprint on the structure of the legal consciousness of future legal professionals. The pedagogical function is closely related to what can be considered legal systematization's most pivotal effect: its heuristic function.

In their heuristic task, divisions of law are part of the hermeneutical Vorverständnis with which the prevailing legal culture furnishes legal actors. Through these divisions, legal actors identify legal problems and define them, say, as issues of criminal or administrative law. Though legal issues are most often specified and located in a quasi-automatic, unconscious manner, this has important normative consequences. The definition of the issue and its systematic location signal the relevance of field-specific legal principles, such as nulla poena sine lege in criminal law or the protection of legitimate expectations in administrative law. Only after we have pinned down the problem at hand within the divisions of law can we tell which rules and principles are pertinent to its solution. Lawyers-to-be largely internalize prevailing, seemingly self-evident divisions during their law studies.

As the heuristic function shows, legal classifications have aspired to more than a mere encyclopaedic ordering of legal raw material. Especially in Continental legal cultures, systematization, which, in its general outline, was adopted in the 19th century, has been a more ambitious project. An integral part of the project has been articulation and elaboration of general doctrines of each of the branches of law. The five ‘books’ of German Pandect law and, subsequently, the BGB reserved a prominent place for general doctrines. One of these books consisted of private law's general doctrines, which in the BGB were complemented by the general doctrines of the other books: property law (Sachenrecht), the law of obligations, family law and the law of inheritance. In fact, the branches of law only acquired their identity through their general doctrines: their concepts, principles and dogmatic theories, as well as their typical methodologies.

Contemporary claims for the independence of new fields of law also seem to be buttressed by proposals for distinct general doctrines. The normative material which such a field is supposed to cover may be delimited through its social object of regulation. However, a definite regulatory object does not yet suffice to constitute a field of the law. What is further needed are concepts structuring the normative material and its regulatory object, principles condensing its normative contents and theories combining concepts and principles. Concepts, principles and theories may be complemented by characteristic methodologies.

3. Why not public law?

European regulatory private law comprises such sub-branches as consumer law, labour law, law of universal services and anti-discrimination law. With the potential exception of anti-discrimination law, these legal fields are comparable to those which in the national legal order straddled private and public law and thus could be included either in Wirtschaftsrecht or besonderes Verwaltungsrecht. What justifies their treatment as European private law? Why classify them as private rather than public law? I have discussed these areas of European law as examples of sectoral constitutionalization, which I distinguished from the framing juridical and political constitutionalization. Related to the traditional systematization of national legal orders, the implication was their mainly public-law character. ³

Another possibility, sharing the same implication, would be to discuss consumer law, labour law, law of universal services and anti-discrimination law in the framework of administrative-law doctrine. Adopting this starting point, one would be confronted with branches of besonderes Verwaltungsrecht. I would venture to claim that for US legal scholars this would be a natural approach, while the private-law option would be difficult to understand. Indeed, a comparative survey would probably prove the US origin of many procedural and institutional devices of EU besonderes Verwaltungsrecht, starting from the procedural requirements resembling those of the US Administrative Procedure Act of 1946 and the central role of independent regulatory authorities. An administrative-law approach to the areas covered by European regulatory private law would also have the benefit of profiting from the debates on global administrative law of the last two decades. Furthermore, it could contribute to an exchange of views between European and US administrative lawyers; a debate from which both sides could profit.

Advocates of European regulatory private law are due to clarify what, exactly, is private in the law allegedly covered by this category and, when sticking to the division between private and public law, why it should be conceived of as Wirtschaftsrecht rather than besonderes Verwaltungsrecht.

4. The process paradigm

The normative justification for introducing new fields of law and legal scholarship consists of providing a facilitating framework for developing new Allgemeine Lehren: field-specific legal concepts, principles, theories and methodologies. In this respect, European regulatory private law or European transnational private law are still due to prove their normative and scholarly fecundity. Above, I have hinted at the potential contribution of an administrative-law approach. Can private-law orientation come up with something comparable? Does the main doctrinal contribution consist of the process paradigm, which The Foundations of European Transnational Private Law ⁴ proposes as a central methodological device?

The process paradigm has affinities not only with the jurisprudence of Henry Hart and Albert Sachs ⁵ or the constitutional theory of John Ely ⁶ but also with US post-APA administrative-law doctrine with its emphasis on the procedural aspect. In The Foundations of European Transnational Private Law, ⁷ the process paradigm, allegedly embedded in the functioning of European transnational private law, is related not only to the methodology of legal scholarship but also to general periodization of modern law's development. The three-stage model of Gunther Teubner looms in the background: Weberian law expressing first formal and then material rationality is followed by reflexive law where the focus shifts to procedures generating and applying norms. ⁸ Another source of inspiration is Duncan Kennedy's sketch of three waves of legal globalization, under the aegis of, respectively, German formalistic, French interest-oriented and US post-war legal thinking with its emphasis on rights, policy analysis and procedure. ⁹

Periodizations of legal development should always be treated with caution and, at most, as loose heuristic devices. Problems of periodization are perhaps most conspicuous in characterizations of the last, post-World-War-II phase and the alleged shift from substance to procedure. Modern law has two sides, a normative and a social one. Modern law consists both of norms and first- and second-order socio-legal practices. Legal norms are realized in first-order practices and produced and reproduced on second-order ones. ¹⁰ In examining law, including the areas covered by European regulatory private law and European transnational private law, attention should be paid to both the normative aspect and the social aspect which stand constant interaction.

It is possible – and the book comes up with arguments pointing to this – that European transnational private law focuses more on procedures than substance and allows the substance to be determined in further practices. By the same token, it blurs the boundary between law and non-law or, if you want, hard and soft law; another characteristic feature of contemporary transnational law. In this sense, the process paradigm is justified. Yet the interaction between normative substance and socio-legal practices should not be neglected. Practices and processes are never substantively neutral or able to grant equal voice to all affected interests. This is something which advocates of the process paradigm or reflexive law à la Teubner should keep in mind.

5. Academic power games

Economic law (Wirtschaftsrecht) and special administrative law (besonderes Verwaltungsrecht) were purported to guarantee the comprehensiveness of the system and to subsume regulatory and welfare-state law under it. But the price for comprehensiveness was partial renunciation of the very premises of the system: general doctrines bringing coherence to distinct fields of law. In present-day doctrinal debates, economic law or special administrative law are but rarely mentioned, and striving for a comprehensive and unequivocal partitioning of the law into distinct fields and corresponding disciplines also seems to be a bygone phase in legal scholarship. But discussion on the law's divisions has not ceased, and new candidates for the status of a relatively independent field of law are not lacking. Why is this the case?

Changes in the law's divisions are clearly connected to changes in legal regulation. Modern law is positive law, and it is enticing to explain the emergence of new fields of law by expansion of the scope of legal regulation and its extension to previously unregulated areas. Regulation of workplace relationships would have generated labour law; legal ordering of social security and healthcare social law; juridification of the doctor–patient relationship medical law; regulation of the natural and constructed environment environmental law; regulation of new means of information production and communication information law or communications law; and so on. The activity of the legislator would account for growing differentiation of the law. Moreover, new legal regulations also relate to wider-reaching social developments, such as the appearance of the welfare state (labour law and social law), medicalization (medical law), ecologicalization (environmental law) and informatization (information law).

The ultimate impulses launching and guiding legal development, including transformations of the law's divisions, undoubtedly come from outside the legal system. Under the conditions of modern, positive law, the legislator bears the main responsibility for conveying these impulses into the legal system. Nevertheless, the expansion of legal regulation and juridification of new social fields of action only partly explain the emergence of new branches of law. The legislator issues laws but does not decide on the systematization of normative material. The primary responsibility for the law's systematization falls to other legal practices; at least in Continental legal cultures, mainly to legal scholarship. Transformations in the system of law cannot be explained without taking adequate note of ‘intrajuristic’ circumstances.

Pierre Bourdieu's tentative analysis of the structure and dynamics of the legal field as a specimen of social field is a proposal for conceiving of these ‘intrajuristic’ relations. It also provides material for a critical narrative which, in its examination of legal discourse, focuses on the participants’ strategic, perlocutionary goals.

Bourdieu approached the law and legal discourse as a social field where legal professionals as possessors of specific socio-cultural capital compete for the field's particular assets and aim to increase the value of their capital. The possessors of legal-cultural capital are engaged in a contest over the monopoly of legal interpretation: the power to declare the law and to determine its contents. The players in the legal field are divided into teams according to the specific character of their capital: theorists challenge practitioners, private lawyers public lawyers and so on. The contest may assume various forms, and diverse means may be employed. The fight may be over, say, the horizontal and vertical relationships of competence within the judiciary; the curriculum of legal education or allocation of resources at law faculties; or composition of boards of lawyers’ associations and editorial boards of law reviews. Participation in the contest requires knowledge of the rules of the game within the legal field and the capability to comply with them. It is these very rules and their mastery that delimit the legal field from other social fields and confer on it a certain autonomy. In Continental European (and American) legal cultures, future lawyers acquire a common foundation of legal capital and internalize the basic rules of the game even during their university-based legal education.

The autonomy of the legal field is only relative in character. The players obtain their clients and, through client relations, their supporters from other social fields, such as business and politics, and the power relations prevailing in these fields affect the score in the legal field. ¹¹ The respective strength of economy and politics cannot but influence the respective potency of private and public law in the legal field. It would be interesting to examine from this point of view how the situation in the legal fields of Western countries changed after the heyday of the welfare state, say, from the 1950s to the turn of the 1970s, as a consequence of financing problems and cutbacks within the public sector, privatization of public services and the liberalistic turn in general ideology.

From a Bourdieuan perspective, campaigns for new branches of law – for example, medical and bio-law, communications law, information law – manifest a race for position in the legal field. Advocates of putative new branches aspiring for independence defy the established disciplines and request their share of, say, resources of legal education or editorial boards and pages of law reviews. These battles for independence exhibit certain typical stages and means, such as establishing an association and a journal. It is telling that established branches of law, being secure in their status, do not in general feel the need for an association or journal of their own. In Finland, no associations exist for civil or procedural law. By contrast, there is a Finnish Association of Social Law, an Association of Sports Law and an Association of Environmental Law Science. While no Review of Criminal Law exists, a Review of Environmental Law, a Yearbook of Information Law and a Yearbook of Sports and Law are published. In the early phases of the campaign, a central claim would be over a chair at the law faculty and acknowledged status in the legal curriculum. When a chair has been obtained, it is turned into a bridgehead, allowing consolidation of victories achieved and the prospect of new conquests.

Advocates of a new branch of law have often external patrons. For instance, labour law has been able to rely on trade unions and employers’ organizations; social law and environmental law on the relevant state and municipal bureaucracies, as well as on NGOs; and information and communications law on the respective industries. Nonetheless, the outcome of the contest is ultimately determined by what transpires within the legal field and depends on the respective legal actors’ ability to exploit their legal capital and competence.

An integral part of this competence consists of argumentative skills, the aptitude to convince other players in the game – other participants in legal discourse – of the weight of one's arguments. A Bourdieuan sociologist observes the legal field from the outside and is inclined to perceive in legal practices merely strategic power games. From the external perspective, normative arguments about the divisions of law are treated as strategically motivated moves in these games. By contrast, the internal, participant's perspective on legal discourse presupposes an assessment of the validity of arguments. Now, danger threatens from another direction. Participants are prone to close their eyes to the strategic aspects of legal practices, including their own. Without the sobering effect of sociological insights, the participants are prone to see in associations and journals propounding new fields of law merely new fora for legal discourse, new opportunities for legal argumentation. They certainly do fulfil this function, too, but the clinical gaze of an outside observer may reveal aspects of legal practices that tend to remain hidden to active players in the field.

In line with all proposals and campaigns for new branches of law, European regulatory private law is engaged in academic power games. An external observer could for instance suspect that introducing European regulatory private law was a reaction to the codification of European private law by the Study Group on a European Civil Code, which produced the Draft Frame of Reference, consisting of Principles, Definitions and Model Rules of European Private Law. The existence of European regulatory private law was supposed to show the deficiency of the Study Group's approach. Critics saw in the Draft Frame of Reference a return to the world of the BGB, where no Wirtschaftsrecht disturbed the neat systematicity of Pandektenrecht.

Self-reflection is scholarly virtue, and even for legal scholars, pondering one's engagement in academic power games helps to contextualize what one is doing. Yet, and this may come as a consolation, the social fact of academic self-enhancement does not nullify the normative validity of legal argument.