On the ‘Rationalities’ of European Private Law–Between the Internal Market and Law's Discourse

Date01 July 2016
Published date01 July 2016
On the Rationalitiesof European Private
LawBetween the Internal Market and Laws
AReplytoInternal Market Rationality, Private Law and the Direction of
the Union: Resuscitating the Market as the Object of the Political’
Leone Niglia*
Abstract: On the basis of the deployment of the idiom of co-production of knowledge and
governance,the article I am commentingupon critically arguesfor overcoming the reication
practices and for there-politicisationof the Europeanprivate law eld. I note and discuss a
dialectical tension between, on the one hand, the explanation based on reicationas the
process of co-production of knowledge and governancewhich de-politicises and, on theother
hand, the description of insti tutional settings themsel ves as instigating and producin g
reicationbetween theory and practice, ideology and discourse.
I IntroductionInternal Market Rationality
Internal Market Rationality, Private Law and the Direction of the Union: Resuscitating
the Market As the Objec t of the Political(her eafter IMR) aims at elucid ating the
rationalitiesof European Private Law.
Bartl claims that thisrequires revisiting the foundationsof private law at the same time
that the role of science and technology in legal discourse is problematised. IMR suggests
that doing so allows us to realise that European private law has been vastly transformed
by the reication of a very specicinternal ma rket rationality(572). Bartl claims tha t
clear evidence of this can be found in an emergence of islesof uncontested knowledge
in EU policy and law makingprocesses, something that has resultedin the substitution of
politicaldebate on politically salient mattersby what is claimed to be technical knowledge.
Bartl considers that thisprocess of reication of internal market rationality has been ren-
dered possible by an a priori of cognitive and normative features (573), which the author
locates in a broader context of institutional design oriented toward the technocratic exe-
cution of uncontroversial goals(574),as opposed to solely ideology (596). IMR considers
that the patterns of juridication (575) related to neo-liberalism (577) constitute the most
* Research Profe ssor, UC3M/European Unio n Funding Connecting ExcellenceDistinguished Senior Fellow
(Investigador Distinguido),Instituto Bartoloméde las Casas, Universitad Carlos III de Madrid,Spain.
This is an invited reply to the article: M. Bartl, Internal Market Rationality, PrivateLaw and the Direction of the
Union: Resuscitating the Market as the Object of the Political,(2015) 21 European Law Journal, 572598; On ra-
tionalities in relation to European private law see already C. Joerges, The Europeanisation of Private Law as a
Rationalisation Process and as a Contest of Disciplines an Analysis of the Directive on Unfair Terms in Con-
sumer Contract, (1995) 3 European Review of Private Law, 175191. more recently, R. Michaels, Islands and
the Ocean: The Two Rationalities of European Private Law,inR.Brownsword,H.Micklitz,L.NigliaandS.
Weatherill (eds.), The Foundations Of European Private Law (Hart, 2011), at 139158. For a critical account of
rationalitessee L. Niglia, The Struggle for European Private Law. A Critique of Codication (Hart, 2015).
European LawJournal, Vol. 22, No. 4, July 2016, pp. 566569.
© 2016 John Wiley & SonsLtd. 9600 Garsington Road, Oxford,OX4 2DQ, UK
and 350 Main Street, Malden,MA 02148, USA

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT