How EU law politicises markets and creates spaces for progressive coding

Abstract

AbstractThis comment 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. I emphasise 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 democratisation. 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 progressive code would be difficult to realise through democratic deliberation in the public sphere alone. The project would have better prospects for success if it relied on iterative destabilisation and redesign of existing market arrangements through platforms that allow for their contestation, the voicing of both popular and expert input in their redesign, and the monitoring of the new solutions. Thus understood, a progressive European code may rely on institutions and processes available in European Union (EU) law which create spaces for contestation of existing dominant assemblages of the modules of capital as well as their progressive rearticulation.