How EU Law Politicizes Markets and Creates Opportunities for Progressive Coding

This article 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. First, I emphasize 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 democratization. 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 project cannot be realized through democratic deliberation in the legislature but needs iterative destabilization and redesign of existing institutions through platforms that allow for contestation of existing market arrangements, voicing of both popular and expert input, and monitoring of the new solutions. This contributes to a private law which is robustly democratic, but at the same time is prone to reconfigure the relationship between democracy and technocracy. I then argue that EU law, or if you want the European economic constitution, can be seen as supportive of Hesselink’s project, or my reading of it. EU law exposes the diversity of forms of market participation which exists in Europe and offers platforms to deliberate interests and identities implicated in different forms of market organization. This points at a permanent politicization of market-making, which is prone to include and emancipate larger and larger pools of market participants. Furthermore, EU law spurs interventions that already go in the direction of a materialized and constitutionalized private law. Hence, parts of Hesselink’s progressive code may already be with us. My tweak also goes onto questioning the claim that Hesselink’s project is or could ever be radical rather than incremental.