Progress towards what? On the need for an intersectional paradigm shift in European private law

Abstract

Hesselink proposes a progressive code of European private law as a radical response to Pistor’s The Code of Capital, which exposes private law’s complicity in staggering wealth inequality and social injustice. In this contribution, I argue that the proposal for a progressive code is insufficiently radical, because it is not fully equipped to address root problems of socially unjust private law. I suggest that a fuller accounting of root problems is necessary as a precondition for a ‘radical’ response: a more fundamental rethinking of private law based in more inclusive theorising of its role in social injustice. I sketch some of the ways in which intersectional approaches can assist in a fuller accounting of root problems by elevating and highlighting how mutually constructing systems of privilege and oppression give rise to social injustices that shape people’s lives. Notably, accounting of private law’s complicity in social injustice should engage private law’s coding of capital as entangled with race and gender. I argue that intersectionality is needed to enable the sort of paradigm shift, progressive visions and radical responses Hesselink aspires.

Keywords

• European private law
• intersectionality
• feminist theory
• social injustice
• gender
• race