Private Law Theory

ABSTRACT
This chapter discusses the ‘political economic’ approach to private law, analysing private law’s role in making, and eventually remaking, different social institutions and processes (such as markets, global value chains, corporations, globalisation). After situating the intellectual locus of ‘private law and political economy’, the chapter first outlines how law and political economy scholars view the social institution of markets, which is often in the centre of their scholarly interest. Second, to exemplify the kind of inquiry that one may encounter in this line of scholarship, I explore what roles private law plays in shaping markets. I start by discussing how private law enables the more coercive side of markets, by falling into what I call here ‘Property Trap’ or ‘Privity Trap’. I turn then to explore how private law may foster more emancipatory side of markets, by means of expanding what ‘private’, in ‘private law’, stands for.

Bartl, Marija, Private Law and Political Economy (February 1, 2023). Forthcoming in Marija Bartl, Laura Burgers and Chantal Mak (eds), Uncovering European private law. European private law handbook, Amsterdam Law School Research Paper No 2023-06; Amsterdam Centre for Transformative Private Law Working Paper No 2023-01.