Private law is always transformative: Every articulation of rights and duties - enabling some forms of action and cooperation as opposed to others - always entails a political choice, with vast impacts on the economy and society. The critical-analytical project behind Transformative Private Law works to grasp how contemporary categories of private law (e.g. contract, property, corporation, tort) and the principles on which they are based (such as privity of contracts, shareholder primacy, causality, liability) empower some actors over others and eventually entrench outcomes that are harmful or unjust. By identifying the ways in which private law entrenches injustice, or aggravates societal challenges, we aim to identify sites of intervention and articulate pathways to alternative private law frameworks. This joint academic ambition is addressed through pluralistic methodological approaches represented within ACT, including both robust doctrinal analysis and transdisciplinary engagements with, for instance, philosophy, social theory, political economy, economics or sociology. ACT welcomes a multiplicity of different perspectives and (counter)narratives and especially those that are often unheard of, or remain significantly underexposed.
While most of us work across several different issue areas, we find the following themes to capture some of the central questions where we want to make a contribution as a group:
Private Law and Sustainability
Sustainability is one of the key themes in which ACT researchers are active. At the core of this theme is the question of how we move towards a future that can sustain itself both ecologically and socially. At ACT, we are interested in the transformation toward sustainability in a twofold manner. In the first place, we seek to understand transformations towards sustainable goals, such as a carbon neutral economy, the social sustainability of business practices, land use and regulation. However, the path towards these goals is as important as the goals themselves. That is why, second, we want to understand the sustainability of transformations themselves. We are particularly interested in exploring whether the process of transformation is conducted in an equitable and socially sustainable manner with due regard to the different approaches to governance and transformation. Balancing these choices will be a key element of our research interests exploring, understanding and fostering sustainable transformation. In both roles we do not see private law as merely instrumental, but also as a strong normative agent of change.
These starting points translate into current and future research projects in a multitude of ways. Firstly, we recognize and embrace pluralism in the understanding of the concept of sustainability and welcome reflections on its meaning. Second, we map, analyse and develop new ways of thinking about finance, consumption, property, nature, labour and social justice. Third, we identify the structuring effects of law in setting up and entrenching ways in which we interact with one another, and articulate how those may aid or hamper our path toward a sustainable future.
Transformative Law of Finance
ACT researchers share a common set of concerns related to the paradigm currently dominating the law of finance. Whether expressed in entrenched dogmas of ‘shareholder value’ or in the theory of ‘legal origins’ as a paramount of development, we depart from the contemporary paradigm that largely reduces the role of law in finance to an oscillation between the enhancement of market efficiency and prudentially safeguarding market stability.
Our work currently revolves around questions of sustainable finance, the regulatory role of multinational corporations, rights and corporate governance, creditor protection in insolvency procedures, issues of financial stability, and distressed debt investment strategies. We approach these subjects from a variety of angles. For example, we investigate how the contemporary world of finance challenges the private/public, national/international, coordination/regulation, or hard/soft law distinctions. We also explore the metaphor of growing and slicing the pie, according to which it is possible and normatively desirable to distinguish questions of socio-economic growth (i.e. how to make the pie bigger) from questions of distribution (i.e. how to slice the pie and duly share its benefits).
While opting for different entries into this world of finance, we collectively seek to understand and appraise the constitutive role of private law in producing and addressing the growing financialisation of socio-economic and political life. We explore how a transformative financial law, underpinned by a commitment to a broader set of policy goals such as equality, sustainability, and heterodox conceptions of value and development could be institutionalized or otherwise introduced into the financial ecosystem.
Just Labour Relations
Private law institutions and core doctrines have a direct influence on how work relations and work itself are conceptualised, valued, and materially positioned, whether in a given society or at global level. The crucial role that private law has played in shaping recent developments in the world of work becomes most evident when we look at the growing dominance of global supply chains, and the recent surge of platform capitalism and financialisation. Also, somewhat sidelined for a few decades, questions of value extraction and evaluation of productive and reproductive activities have been more recently reignited by a series of successive crises.
At ACT, we explore how private law constitutes and sustains these emerging structures that lead to evermore fragmented, highly commodified, often precarious work. Globalisation, financialisation and digitalisation processes have, with the help of private law, brought about deep transformations in the structure and functions of organised economic activities. The accountability gap affecting labour conditions in supply chains (as highlighted by the Walmart case), and more recently, the wave of cancelled procurements in the global south as a consequence of lockdowns in the global north, underline the limits of traditional doctrines like unjustified enrichment, privity of contracts, and, relatedly, third party effects. In a context of ever-growing interconnectedness, other traditionally core areas like tort law and private international law - a core instrument of worker (hyper)mobility - are also ripe for reconsideration. New analytical lenses and updated normative frameworks are needed if we are to understand and affect the distribution of power and material and social resources in the emerging new modalities of work and work relations at both a local and global level.
Building on the recognition that private law affects the livelihoods of working people in fundamental ways, research at ACT seeks to understand how we could rethink private law so that it will lead to sustainable work and just labour relations for everyone across the globe.
Private Law in a Digital Age
Digital technologies, algorithms, data, and artificial intelligence affect markets and society, changing democratic processes and industries all over the world. Transactions, communications, and dispute resolution increasingly take place online, with cross-border implications for decision-making powers and control over data. Digitalisation has further accelerated the rise of services and changed the way in which goods are sold, used, and maintained. Big data and evermore complex algorithms are driving automatization of contracts and enforcement in a variety of domains. While online hearings have been on the rise during the pandemic, more radical changes are in the making with an eye towards using expert systems and AI in the civil justice system. Not only have new powerful actors emerged in the so-called “platform economy”, data-led finance is posed to upset the way companies across markets are owned and run. Digitalisation thus has an impact on all areas of private law, ranging from contract and consumer law to company law, labour, and civil procedure.
At ACT, we look at normative, ethical, and empirical questions as to how public values and private legal relationships are shaped and challenged, as well as how legal safeguards can be upheld and responsibilities distributed between various actors. While digitalisation holds promises of access, expediency, and decentralisation, it is also liable to enhance threats to fundamental rights - such as, prominently, privacy, non-discrimination, freedom of expression, and democratic participation, and due process - , competition, and market governance at large. With platforms increasingly acting as law-makers and as mediators in their own legal ecosystems - indeed, in ordering and structuring our society - how can individual and collective fairness be ensured in the relevant decision-making processes, and who decides what justice is? These and other questions require cross-cutting research that looks at the role of private law against the backdrop of technology, market models, social science, and an increasingly complex body of existing interdisciplinary research. To address some of these questions, ACT researchers have been involved in projects on consumer protection and targeted commercial practices online, remedies and contestation in the context of online content moderation, contractual rules for the supply of digital content, and services and the management of digital inheritance.
Transforming Economic Structures: Ownership and Governance
Ownership is both a foundational category of private law and a legally induced medium of power that plays out at the local, national, and international level. Through ownership, law confers power but also responsibilities and duties. Yet, legal scholarship all too often takes concepts of ownership as a timeless and pre-political given and leaves little room for alternative conceptualizations. Governance studies, on the other hand, are often limited to a micro-level analysis of optimizing the governance structure of a given organization (and carry a strong inclination towards efficiency), rather than connecting micro-level modes of governance to society-wide effects, e.g. regarding sustainable use of resources, and a fair allocation of capital and power.
At ACT, we question claims that the concept of ownership is rooted in a ‘natural order’ and take the political choice underlying every allocation of ownership as a starting point. We aim to better understand the theoretical foundations of ownership, property law, and governance, and explore how current national, international, and supranational property law systems and governance structures influence society. We focus on the connections between ownership and governance, and ask how ownership can translate into, and bring about, different governance regimes in various spheres of society, including housing, the corporate world, or the access to essential resources. In this context, we are also interested in emerging and alternative types of property and corporate ownership that display the variety of existing legal institutionalizations, as illustrated e.g. by the discussion around commons or non-extractive organizations.
Reimagining Private Law
Reimagining private law is a central endeavour at ACT, and spans across all the research lines. We seek, first, to understand the transformation of the world of private law itself, caused in part by changing conceptualisations of the basics of private law, its prevailing methods as well as its normative reorientation and growing importance in contemporary societies and in transnational settings. In this context, we pay specific attention to the effects of Europeanisation and globalisation on rules of (domestic) private law and the emergence of new understandings and justifications of the field. ACT research thus contributes to private law theory and contemporary legal thought. Second, we explore private law’s impact on, and constitutive role in, shaping societal questions and problems, amidst rising global inequality and an ever more acute environmental crisis. Adopting a pluralistic and contextual view, we analyse how different understandings of private law lead to different conceptualisations of the problems, as well as different possible answers to these problems. On the basis of our findings, we propose alternative ways of thinking about the roles, aims and effects of private law in society, at both a local and global level.
Our work encompasses both general questions of theories, methods, and normative underpinnings of private law as well as specific inquiries into selected subject areas. In this, ACT is home to a wide-ranging and diverse set of approaches to the study of private law. Our projects retrace, for instance, changing functions of basic private law institutions in a historical-comparative perspective as well as questions of how original normative justifications of a specific doctrine are over the course of time turned into their opposite (‘perverse private law’). Furthermore, our work identifies gaps in legal protection due to the misalignment of norms deriving from national, European, and transnational levels of governance, amongst others in relation to new developments, such as the emergence of smart contracts or digital inheritances. At ACT, we seek to anticipate, and contribute to, possible developments and reimaginations of private law in order to improve societal goals, such as housing justice and, more broadly, the transition towards more sustainable and just economies and societies.