Internal Market Rationality, Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political

• Published date: 01 September 2015
• Date: 01 September 2015
• DOI: http://doi.org/10.1111/eulj.12122

Internal Market Rationality, Private Law

and the Direction of the Union:

Resuscitating the Market as the Object of

the Political

Marija Bartl*

Abstract: This paper proposes a concept of ‘internal market rationality’ for the analysis

of the political, legal and economic consequences of European integration. Internal

market rationality refers to a specific pattern of political action in the field of internal

market, which has emerged gradually due to the confluence of three main factors: first,

the EU’s functional institutional design; second, the processes of post-national

juridification; and third, a more contingent influence of ideas. In the interplay of those

three factors, the interpretation of internal market has become overdetermined, restrict-

ing thereby the space of (democratic) politics in its regulation. This reification of

internal market rationality has had a direct influence on the content of European law, as

I demonstrate through the example of European private law. Internal market rationality

has transformed the very concept of justice underpinning private law, the concept of the

person or subject of law, the (re)distributive pattern of private law as well as the

normative basis on which private law stands. I argue, finally, that a close examination of

the legal, institutional and ideological arrangement behind internal market rationality

provides clues for the democratisation of the EU.

I Introduction

This article advances a new concept—that of internal market rationality—to explain

how the key aim of European integration, the establishment of internal market, has

come to shape both the substance and processes of private law-making in Europe

today.

The processes of economic liberalisation and privatisation that followed the Single

European Act have increased the centrality of private law in the EU. Private law has

become the principal juridical framework for a growing number of social and

*Lecturer at the University of Amsterdam, The Centre for the Study of European Contract Law, and

Researcher within the project ‘The Architecture of Postnational Rulemaking’. I would like to thank

Leone Candida, Rónán Condon, Aukje van de Hoek, Martijn Hesselink, Pavel Kolárˇ, Leo Specht,

Horatia Muir Watt, the participants of the IGLP Writing Workshop, and finally Agustin Menendez and

two anonymous peer reviewers for their invaluable comments on the earlier drafts of this paper. All

remaining errors are mine.

© 2015 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

European Law Journal, Vol. 21, No. 5, September 2015, pp. 572–598.

economic relations. Yet the more the EU has boosted the role of private law, the more

it has transformed—or distorted—its internal normativity.

Posing the construction of the single/internal market as the key task of private law

has transformed radically its key tenets: the concept of justice underpinning private

law, the concept of the person or subject of law, the (re)distributive pattern of private

law, and the normative basis on which private law stands. While the transformation

might have been invigorated by ‘neoliberal’ thought, I argue that a fundamental role

has been played by the original ambivalence of the European integration project, and

most particularly by its institutional and substantive functionalism.

In the following section (Part II), I propose a theoretical framework for under-

standing the processes of reification of political action in functionalist entities. I

explore how the confluence of EU legal-institutional arrangements and a broader

ideological constellation made the emergence and the reification of internal market

rationality possible. The subsequent section (Part III) analyses the implications of

internal market rationality for the transformation of European law. I seek to dem-

onstrate that internal market rationality has fundamentally transformed the very idea

of private law. The final section (Part IV) investigates a particular division of labour

among the EU institutions, as an unexpected consequence of EU functionalist insti-

tutional design. While this division of labour among the EU institutions has been

pivotal to the ongoing reification of political action in the EU, it may at the same time

hold the seeds for its containment.

II The Reification of Political Action in the EU: The Emergence of Internal

Market Rationality

I understand internal market rationality as a specific pattern of political action in the

EU—EU’s political rationality. Internal market rationality may be said to comprise

various normative and cognitive (knowledge) components, such as laws, values, prin-

ciples, ‘common sense’, economic doctrines, political expediency, responses to public

opinion, policies or notions of human rights.1These elements lend the structure to the

field of possible political action in the EU and provide language for conducting policy

debates.

In a functionalist entity of economic integration, such as the EU, the primary

normative component of political action has been supplied by its economic purpose:

the construction of the common/internal market. This European goal has in turn

motivated the production of an enormous body of knowledge, which has, over time,

supplied the cognitive foundation of its political rationality.

Yet, while we understand ‘rationality’ and ‘knowledge’ are positive notions, which

should enable political institutions to act in a normatively desirable rational way, I

will be interested here in a certain pathogenic interaction between politics and knowl-

edge production in functionalist entities, captured by the term ‘reification’.

As an example of the reification in the EU, in Part IV I discuss the way in which the

main goal of European private law—the online internal market—has been established.

In this process of European private law-making, the relationship between the online

internal market and other EU goals (such as economic growth or employment) has

1M. Beeson and A. Firth, ‘Neoliberalism as a Political Rationality: Australian Public Policy since the

1980s’, (1998) 34 Journal of Sociology 215–231.

Internal Market Rationality

September 2015

573

© 2015 John Wiley & Sons Ltd.