European solidarity and the imaginative ordering of markets

A. The unsteadiness of private legality

A starting point for identifying TPL is John Gardner's notion of legality that he used to identify what is distinctive about law. ⁴ Legality identified two features. Law is institutionally distinctive. It has a formal autonomy that comprises legal systems that constitute, organize and regulate laws and legal norms, and, to that end, provide procedures for the making, application and adjudication of these. Law is also ethically distinctive insofar as these legal systems include moral norms that apply to them exclusively by dint of their qualities as legal systems, most notably the law must be open, prospective and clear. Gardner was concerned with what was distinctive about all law. TPL is more pluralist. It assumes different legal systems exercise authority within the same territory. Each of these does not exercise authority equally and universally across the territory. Instead, their authority varies according to the activity in question, with there usually being both formal and political moral reasons for why this is so. Consequently, TPL's (persuasive) starting point is that legal systems and sub-systems can give expression to and be governed by different legalities. Gardner's insights are nevertheless still valuable. They set conditions which both provide a threshold for when an array of laws should be considered a sub-system of law in its own right and allow us to identify that sub-system. It must have a formal autonomy that distinguishes it and an ethic that is particular to it and is seen as underpinning it.

In this regard, TPL is identified with three categories of private law. ⁵ Each has procedures, doctrines and taxonomies that mark out its formal autonomy, and each is sustained by a particular vison of freedom that provides its vocation.

The first category identifies private law with particular doctrines (contract, tort and property), taxonomies (common law, civil code) and processes for making and applying it (English King's Bench Division, courts of cassation). Its underpinning vision of freedom is enabling parties to exploit things and others, subject to their recognition of the legal rights of others. ⁶

The second category, regulatory law, involves the specialized oversight of activity to realize a collective good or avert a collective harm with expertise central both to identifying these and to the action necessary to address them. ⁷ This law is associated with all the institutions and processes associated with regulation. Historically, regulation was concerned with correcting market failures. ⁸ It thus went to activities private parties could and should have done. Regulatory law is thus associated with a vision of freedom as responsibility. ⁹ Something is a product of a party's free actions as it was caused by things that they could do or control. They are therefore responsible for it.

The third category, non-State law, includes a variety of commercial, professional and industrial norms (industrial standards, technological codes and operating systems, codes of conduct and global value chains). ¹⁰ Its formal distinctiveness lies in a commitment to norm-oriented action that distinguishes it from aggregations of private interests, ¹¹ a formality and mutual accountability that elevates it above social norms, and its being generated, operated and policed by private actors. ¹² The vision of freedom is freedom as ableness. ¹³ It is concerned with collective rather than individual agency of the parties and enables things to be done by these parties that otherwise could not collectively be done (for example, prevention of child labour in the production or harvesting of goods).

These categories result in the field being extremely eclectic. There is little commonality between a sales-of-goods dispute, EU environmental regulation and the ISO/IEC 42001 standard on Artificial Intelligence Management Systems, be it in terms of legal form or moral vocation. This has a cost. It becomes difficult to describe what TPL does or represents, or its dynamics of power, possibilities and dangers. If this does not matter, why not treat these three categories as unrelated, allowing greater attention to the specificities of each? Furthermore, leaving TPL weakly specified means its boundaries are unproblematized. TPL has, thus, taken a curiously narrow view of what is ‘private’. Family and religious law are, for example, tightly identified with the private sphere. ¹⁴ However, there is no extensive literature identifying these as TPL.

Yet a persuasive case can be made that each of these categories should be private law. If that is so, the issue is not breadth but fragmentation, with no relationship established between the three categories. This is, for the most part, because each category is associated very clearly with formal decision-making processes – courts, regulatory agencies, standardization procedures. This gets in the way of thinking what is distinctive about the field as a whole and grants too much value to the micro-dynamics of each category.

To encompass this heterogeneity of decision-making procedures, a less formal definition of institutions is needed. To that end, there is an enormous literature on social institutions. However, a definition that will do is the following:

a complex of positions, roles, norms and values lodged in particular types of social structures and organising relatively stable patterns of human activity with respect to fundamental problems… ¹⁵

If that is so, what is the institution that identifies ETPL? And what is its ethic? In short, the institution is a particular form of market law: an ordering of markets by law from beyond the State. The ethic is a vision of freedom that combines imagination, innovation and solidarity with strangers.

It is now time to elaborate.

B. Anchoring private legality: From civil society to market law

TPL might need to transcend the fragmentation and formal categorizations of private law. However, it is still rooted in a wider idea of private legality. It will be suggested that this notion is rooted in Hegel's vision of civil society. This seems strange. Hegel wrote on private law. ¹⁷ That might seem the appropriate point of comparison. However, Hegel saw private law as confined to limited legal institutions (property, contract, tort), and conceived it as pre-eminently a system of mutual recognition between individuals that allowed for the materialization of individual freedom and will. ¹⁸ This is too narrow for TPL. Regulatory law, the second category, is thus not about this, but about a state of affairs which balances freedoms, goods and values. The central focus is not the realization of individual freedom but the degree of accommodation, pluralism and equilibrium secured. Equally, non-Statal law's central concern is the quality and effective operation of normative orders, with individual parties’ freedom subsumed into this. ¹⁹

Hegel's civil society is a less tightly drawn concept that fits more easily the diversity of TPL. ²⁰ It has three elements. ²¹ It is, first, a ‘system of wants.’ ²² Individuals having to meet the needs of others to satisfy their own desires provides the conditions for a system ‘which interweaves the subsistence, happiness, and rights of the individual with the subsistence, happiness, and right of all.’ ²³ It comprises, secondly, ‘the actualization of the general freedom required for this’. ²⁴ This recasts this system of wants as a system of legal rights. However, as these rights must service these wants, certain laws are integral to civil society, most notably property rights and contract law. Thirdly, civil society requires ‘provision against possible mischances, and care for the particular interest as a common interest.’ ²⁵ This involves, inter alia, processes that offer individuals security from harm.

This conception of civil society and private legality match materially. All the private law outlined above would form part, therefore, of Hegel's civil society. This derives from a similar ethic. Hegel's civil society emphasizes the mutual dependence between the pursuit of self-interest and regard for the needs of others whilst these different forms of private legality, albeit in varying ways, draw a tight relationship between the pursuit of a private interest and realization of a wider norm. ²⁶ Both also accord a primordial place to law. In each, law serves to constitute and endow the order with its particular qualities, regulate activities and organize action. TPL's autonomy from the State ²⁷ means that, like Hegel's civil society, it has an unsteady relationship with the State. Both civil society and TPL are thus seen, variously, as preceding the State, ²⁸ implicated with it ²⁹ and reliant on the State. ³⁰ Finally, Hegel's civil society neither included the family nor the State. ³¹ For he conceived civil society as mediating an open-ended category of interests that pursued their own particular goals. The family, by contrast, is based on love, and the commitment was therefore not to an open-ended but a much narrower group of people. ³² The State (and religion) are not about mediating between particular interests but promoting and representing a general interest. ³³ Family law and religious, therefore, have a different constitutive ethic from TPL.

It is too obtuse to describe private legality as the transformation of a system of wants into a system of legal rights that protects common and other interests. Equally, to equate private legality with civil society law takes one down a rabbit hole about what civil society comprises. It is simpler to identify private legality with market law. The market is at the core of Hegel's civil society. Property rights, contract and the corporation were thus all central civil society institutions for him. Here, the market is not some notional zone where supply and demand meet but is conceived in institutional terms as those laws (understood widely) and related practices that go to constituting, organizing and regulating market relations. If Hegel's vision of civil society extended beyond the market to include other processes that provided for the pursuit of individual wants, he struggled to specify what these were.

There are, moreover, good reasons for establishing such a field of law. Markets are associated with experimentation, dynamism, pluralism and problem-solving. These all provide good reasons for the law to nurture them. Markets also place demands on law to be adaptive and responsive. Possibly more than other arenas, they institute autonomous spheres of life (the workplace, the supply chain, the business association, the franchise) which have their own norm-generating qualities and powerful forms of socialization. However, markets are also associated with the concentration and abuse of power, immiseration, alienation and anomie. Finally, the complexity and instability of markets imposes challenges of coordination and organization that are both demanding and distinctive.

C. The terrain of market law

Casting TPL as transnational market law specifies it further. However, it begs questions as to what these markets are. In this regard, Fligstein and Calder provide a useful starting point. Markets are:

arenas where repeated exchanges occur between buyers and sellers under a set of formal rules and informal understandings governing relations among competitors, suppliers, and customers. ³⁴

As collective activities, enduring phenomena and frameworks for action, Fourcade has observed that four dimensions are necessary for markets to come into being and endure. ³⁶ They must, first, be instituted so that they are identifiable fora that generate the necessary predictability, stability and trust for parties to transact repeatedly. Secondly, they have a performative dimension. They depend upon certain activities to bring them into being, notably parties must come together to calculate and agree a price for a transaction. Thirdly, markets are forms of social interaction that play out a number of roles: the competitor, customer, supplier, distributor. In markets, parties do not merely enact these roles (that is, being a customer or competitor) but also relationships between these roles. Firms look at and vie with competitors, secure customers etc. Fourthly, Fourcade observes, each market actor has endowments (market share, financial capital, market knowledge) and vulnerabilities (need, market ignorance, fecklessness) that organize and characterize the market in question. Monopolistic markets will thus be different from other markets, as will be markets relying on human fecklessness (for example, betting markets) from those that do not.

From this, it is possible to identify the terrain of TPL. For laws are necessary to support, stabilize and identify each of these market dimensions. This requires some elaboration.

On the structures necessary to institute markets, ³⁷ Fligstein has noted three are prominent. Governance structures stabilize conditions of competition and cooperation. They include not only competition and company law but any laws that significantly affect the terms of competition or business organization (labour, health and safety, environmental, advertising, tort). Rules of exchange stabilize the terms of exchange. They determine what can be transacted and by whom. They comprise contract law and any law that governs who can buy or sell things (the law of the professions, financial services) or what can be sold (consumer protection law). Property rights go to who acquires the profits from market activities. This includes profits from both individual transactions (rights to sell, lease or license as well to profit from assets such as others’ personal data) and continued market activity. The State and employees often claim a share of the latter (through tax and labour law) whilst insolvency law ascribes responsibility for losses that few wish to assume.

Performatively, the conclusion of a transaction does not happen magically but relies on a series of prior processes. ³⁸ The object of the transaction must be specified in such a way that it can be ascribed a value, with the law informing this through product or service specifications, labelling obligations. To know whether the transaction is worth it, each party must be able to calculate the costs and benefits leading up to and derived from the sale. Often, this involves the seller developing a business plan to assess the research and develop costs, profit margins, logistics, risks from competition etc. ³⁹ Such planning relies on laws on commercial secrets, intellectual property rights and accountancy standards. By contrast, for the buyer, the seller's familiarity with the good and service gives her, in the absence of other thing, an advantage in the calculation of price. Disclosure and inspection requirements will often be introduced not merely to reduce this advantage but to provide the confidence that will allow sales to take place. Finally, a setting needs to be provided which not only allows the transaction to be done at volume but to be compared to similar transactions etc. (supermarkets, stock exchanges, online platforms), ⁴⁰ and laws or market standards will be necessary to secure confidence in that setting (stock exchange, retail, market manipulation, platform content laws).

As processes of social interaction, markets are oriented around the relations of their central incumbents, typically firms. In their relations with competitors, firms will seek to differentiate what they sell, both to secure a niche that shelters them from these and to benefit from their own particular attributes. ⁴¹ To support this, market law has thus granted extensive protection, notably through intellectual property laws, to brand and product differentiation. This impulse to differentiate also structures firms’ relations with their customers. To secure differentiation that customers desire, firms seek both to know as much as possible about the latter and to cultivate narratives, desires and needs for them. ⁴² Advertising and data protection law enables and regulates this. Alongside this, firms are concerned to ensure regularity in the quality and volume of what they sell. ⁴³ To that end, they need stable networks of suppliers, distributors, vendors and customers, with these relations often marked by high levels of socialization and strong disincentives to exit. To that end, market law protects a whole host of distribution, supply and franchise arrangements, indulging restrictions on intra-brand competition so that those who participate in these arrangements are protected from competition from other participants.

On the organization of markets, parties come to markets with different resources, pressures, needs, desires, vulnerabilities and knowledge. These inform their market power. They also inform the structure and operation of the market, be it the levels of market concentration or its responsiveness to changes in price, quantity or quality. Market law has a clear regulatory role here. It constrains the powerful through competition, public procurement and public undertaking law. It protects the weak through consumer, labour, universal service law and dispensations for small and medium-sized undertakings. It also has a constitutive role as it imperfectly expresses the idea that all market actors have a market identity. This identity informs not only what they seek on the market, but also how they are recognized by others and what these seek from them. This comes most visibly to the fore with issues of market status. Firms have been found to be concerned not only to protect their reputation (derived from their past and present conduct) but also their status, which derives from market relations with others. The latter shapes the markets they enter and do not enter, and with whom they transact. ⁴⁴ Market law only partially informs the generation of these identities as these are the products of the choices, endowments, narratives and relations of individual actors. However, it is central to their recognition and protection. It provides proxies that enable easy recognition by others of certain identities (the consumer, worker, monopolist, small and medium-sized enterprise), with a corresponding tailoring of expectations of the type of market relation that will be enjoyed. It offers also more direct protection: be this trademark law that protects brands; laws on commercial secrets and professional reputations; or laws setting out both when parties can refuse to deal with others and when they can force others to deal with them.

A. Transnationalism as law beyond the state

TPL is not, however, all market law. It is transnational market law. Any discussion of the ‘transnational’ begins with the double-headed definition famously provided by Jessup. It is, first, ‘all law which regulates actions or events that transcend national frontiers’ and, secondly, not merely national, public international and private international law regulating these but also other rules that ‘do not wholly fit into standard categories.’ ⁴⁵ However, it is unlikely that we would today see transnational law as ‘action or event’-driven. It would make it too wide as it would comprise any law that affects foreigners, regardless of whether this equally affects domestic actors. For the regulation of the foreigner is an ‘event’ that straddles a frontier. It would also make transnational law too narrow. Non-national legal norms, such as legal transplants, often govern relations that are otherwise exclusively domestic in nature. The event at issue happens in the State. All parties to the dispute are State nationals, as are the State officials. Yet one would surely want this to be seen as part of transnational law as these contexts beg the most questions as to why domestic actors look to laws beyond the State, what happens when they do this, and the risks and possibilities associated with this.

That being so, transnational law comprises laws from beyond a State that exercise authority within that State. ⁴⁶ These ‘beyond’ qualities might be because the provenance of these laws is international (public international law, regional international organization law); a contract or private international law stipulates another law is to be applied in that State; a foreign law has been transplanted to that State; or private parties within that State grant authority to non-Statal law (industrial standards, value chains, codes of conduct, MNE operating standards).

B. Transnationalism: Solidarity with strangers, revising sensibilities and avoiding distributive injustices

Transnationalism's ‘beyond the State’ qualities engender transversal associations. These convey a commitment to re-evaluate our modi operandi and vivendi through looking beyond the horizon in a way that expands how we understand the world. ⁴⁷ In that, transnationalism ethic is as committed to innovation and imagination as the market. However, transnationalism also contains a commitment to a recognition of the stranger. This recognition is different from the recognition of strangers in national constitutional democracies that commits us to recognize them as fellow citizens. Transnational recognition is, in the first place, an open-ended one. It is a commitment, in principle, to recognize any stranger. In the second place, transnationalism also involves a commitment to re-evaluate sensibilities. It is a commitment not only to learn from others but to rethink who (or even what) is a stranger to whom we should grant esteem. If historically transnationalism was about recognizing the foreigner, it now commits us to revalue any interest or identity that may have been neglected or undervalued. Finally, transnationalism involves a different quality of recognition from that required by national citizenship. The latter requires that we recognize other strangers as political equals. Transnationalism is a weaker commitment. It requires solidarity with strangers, a commitment that involves empathy, civility and a level of support that secures them human dignity. ⁴⁸ It does not require, however, that we see them as political equals.

The private dimension to transnationalism introduces a further ethic, a commitment to avoid distributive injustice. Historically, distributive justice has had a restricted place in private law. ⁴⁹ Other fields of law were to address these concerns. However, this distributive equilibrium is not possible transnationally as these other fields, be this tax, labour or welfare law, are not present to the same extent. This is concerning as TPL undermines State mechanisms for redistribution. It provides vehicles for the movement of capital and assets out of States; protections in States to which this capital and assets has been transferred; and instruments for trading with States from outside that State whilst ignoring the social contract established in the former. The central vehicles for profit shifting and tax base erosion are thus established TPL ones: intellectual property rights, corporate special purpose vehicles and intra-group transfer pricing contracts. ⁵⁰

The choice is, therefore, whether to be indifferent to TPL's injustices or to see a commitment to avoid distributive justice as central to its authority. In this regard, the terrain of market law comprises many forms of law (tax, labour, environmental law) that involve a distributive ethic. If traditional private law is indifferent to distributive injustice, market law is not. Neither is transnationalism, which involves an ethical commitment to strangers. Some commitment to avoid distributive injustice is also the direction of international practice within TPL. Both national governments and the OECD increasingly use the tax system not merely to levy revenue but to counter transnational transactions that extract from a State but do not provide an adequate return. ⁵¹

C. The contingency of transnational law

Transnational law never exists alone. ⁵² It relies on acknowledgment of its qualities by somebody within the national territory. For it cannot be ‘beyond the State’ unless its provenance is recognized by some actor from the State which it is beyond. This actor must also grant it normative authority. For to be law, it must be recognized as having normative qualities that provide authoritative reasons to act in particular ways within that State. This actor can be a national official (for example, the adoption of legal transplants into national law by a lawmaker or the application of a treaty by a judge) or a private party (for example, the application of industrial standards or submission to commercial arbitration). However, in all instances, she must be able to apply it. For transnational law depends upon a material presence in that State, if it is to be distinguished from rhetorical allusions. This involves, at the very least, that it be acted out in some way by parties responsible for applying it there.

This inability to exist alone means transnational law has a complicated authority. It is complicated because it is often highly mediated by national law, most notably when interwoven with the latter: be it arbitrators incorporating national laws into their decision-making or deferring to national laws on process, or officials interpreting national law in the light of EU law. ⁵³ It is complicated also because its authority is often contested. It will invariably sit alongside other laws within that territory with the possibility of conflicts with these. In such circumstances, the choice in deciding whether to disapply it is not, as with national law in a unitary State, between application and a legal vacuum. Even if one law is disapplied, the other will govern the activity in question. There is no danger of a lawless State. With that risk absent, it is not clear that the pedigree of one law should entail that it prevails completely independently from the content of either law.

This complicated authority, to be sure, puts TPL in question. However, it also grants it a distinctive authority. Its authority is not tied to a power of presence, routine or resources. It lies rather in its being a law that enables connections, interrogation, justification and reflection. For these are the qualities that enable imagination, innovation and solidarity. One would want these to be present when TPL prevail. However, these values are also not absolute, and there may be circumstances when other values should take precedence, and there, other laws prevail.

A. Europe and TPL scepticism

TPL is thus market law from beyond the State. Its ethic is a freedom that pursues imagination and innovation subject to solidarity with strangers that is both open-ended and committed to avoiding distributive injustices.

This is pithy and noble, but glosses over markets and transnationalism's dark sides. Markets are too often associated with rapaciousness, greed, indifference to injustice, anomie, exploitation, dominance. Similarly, transnationalism is also associated with rarefication and lack of constraint. Rarefication goes to its vulnerability to an empty universalism, which embraces everything but is attentive to nothing. This empty universalism too easily discounts signification, power, history and place. ⁵⁴ This vacuity allows transnationalism to be too easily exploited by those seeking to impose their agendas on others. ⁵⁵ Lack of constraint goes to transnationalism's commercial origins. ⁵⁶ These identify transnationalism with commercial and informational processes that encompass the nation State and are, correspondingly, too unfettered and powerful. ⁵⁷

What dimension of markets and transnationalism turns up depends heavily upon circumstance and perspective. In some cases, all dimensions are present. A global industrial standard, for example, introducing new technologies to combat climate change expresses innovation and solidarity with future generations. It can also convey a corporate power that can disadvantage competitors by setting the terms of competition and exploit suppliers as these may have to do whatever it takes to make the standard a reality.

TPL is insufficiently robust, institutionally and normatively, for us to have faith that it will not go over too often to furthering these dark sides. To address this, there needs to be a phenomenon marked by two qualities that checks this. It must, first, have an ethical dimension that is proximate to that of TPL. This proximity reduces risks of misrecognition, namely ascribing ideals to TPL that it does not have. It is also important to ensure TPL's ethical vitality. For this proximity makes it likely that this ethic is also what this phenomenon is about. The consequent development of the phenomenon should, in turn, drive the development of the ethic. However, this proximity must also involve sufficient independence to provide a sufficiently steadfast moral compass to protect against TPL's limitations. Secondly, there is an institutional dimension. Institutions grant force to this ethic. Equally importantly, they provide fora for debate and contestation surrounding it. In this, they also place important checks, preventing it becoming too rarefied and monocular and forcing it to adapt the messiness, complexity, contingency and plurality of collective life. For similar reasons to the ethical dimension, this institutional dimensional must have proximity to TPL. However, as we are comparing practices not ideals, that means that a large part of this phenomenon must be given over to instituting TPL.

It is here that the ‘E’ in ETPL comes in. It will be suggested that there is such a phenomenon, albeit a multifaceted one. Its ethical dimension is represented by the European ideal of freedom, as best set out by Kristeva, and its institutional dimension is represented by EU law. If the possibilities of each are set out in the subsection below, it is worth saying a few words about their proximity to TPL.

As will be seen, the European ideal's commitments of transformation and solidarity correspond to the TPL ones of imagination, innovation and solidarity. This stems from the tight relationship between the European ideal and the transnational one. Both are concerned with the same end, the opening out and questioning of vistas. EU law's proximity to TPL derives from its relationship to private law. It is arguably the central forum for the cultivation of two of the three forms of private law (regulatory law and standardization) mentioned earlier. If that is not true of contract, tort and property rights, EU law has been pioneering in developing the concept of market law. For one does not find this concept so clearly articulated in national or international law. Market law relates these legal institutions (property, contract, tort) to one another in a more transparent and informative way than bundling them together as ‘private’. It goes to what they often combine to do; what they create, risk and damage; and how these fields distribute and allocate (or fail in this). As the chapters in The Foundations of European Transnational Private Law bring out, notably those on tax and labour rights, ⁵⁸ EU law, consequently, addresses more directly the distributive issues of private law as well the normative commitments that develop from market dependencies. ⁵⁹

B. Europe as transformation and singularity

Julia Kristeva provides possibly the most persuasive account of a European vision of freedom. ⁶⁰ She argues that democratic societies have developed two types of freedom that are rooted in Europe's intellectual history and political traditions. These can be traced back to Christianity and the Ancient Greeks and are identified respectively with Kant and Heidegger. One is the freedom to adapt to a cause external to oneself, be it a moral or non-moral cause. She identifies this as the freedom to begin or the freedom to be an enterprising subject. The dynamism, innovation and much of the imagination of markets is rooted in this freedom. The other freedom is Being, namely to be prior to any cause. Kristeva identifies this freedom with eternal questioning and aesthetics. It values the singularity and vulnerability of each of us because these are expressions of our Being rather than because they create anything. Solidarity relies most heavily on this tradition.

If this account of European freedom is close to the ethic of TPL, it has more autonomous and authoritative roots and, grounded in intellectual history, is subject to more rigorous and curious questioning.

C. EU law as the reference point for ETPL

The laws for giving force to this European ethic would be any market law from beyond the State that is identified explicitly or implicitly as European. Explicit examples would be relevant Council of Europe Conventions and European standards. Implicit examples would be legal transplants or other forms of use of comparative law involving a European State(s) as transplanter or recipient; private or public international law and regulatory standard-setting either involving exclusively or predominantly European States; and non-State law developed by private actors who are predominantly based in Europe. ⁶¹ Such law would gain its authority as ETPL through its commitment to the vision of European freedom just described.

At the centre of all this is EU law, by dint of its institutional presence and the volume of EU market law. This generates a queasiness. There is a danger of ETPL being reduced to just another cypher for the EU's institutional opportunism. However, beyond its presence, there are also good reasons why EU law might be well suited to securing not only the European vision of freedom just described of transformation and valuing singularity but also the TPL ones of imagination, innovation and solidarity with strangers. These reasons go to its institutional set-up, the imagined communities and the quality of its authority.

Institutionally, over 30 years ago, Christian Joerges with uncanny accuracy prophesied that, as the EU single market extended their responsibilities, administrative actors would have to cooperate more strongly with the economic interests they regulated, interests more heterogeneous in the EU than the national context, and refer more extensively to expertise. ⁶² This would not lead to a drift to technocracy and corporatism, in his view, but ongoing tensions between economic regulation and social regulation, on the one hand, and functional integration and wider political concerns, on the other. These dynamics have resulted in significant institutional experimentation (for example, comitology, standardization, agencies, the Open Method of Coordination, new forms of property right and supply chain regulation). The EU also comprises probably the most populated public sphere of any market-making arena in the world, comprising significant numbers of corporate, non-corporate, national, sub-national, national and transnational actors. ⁶³ The culture of consensus within the EU decision-making bodies comprising national representatives both prevents veto-asserting behaviour and requires representatives to have regard not only to the positions of other representatives but also the constellations of interests that underpin these.

Europe is a less resonant imagined community than national ones. It does not have the museums, educational curricula, sports teams, tales of sacrifice, or welfare provision that support narratives of nationhood. Europeans relate it less to their daily lives as these vehicles are not available for its expression. ⁶⁴ Europe's lack of resonance, however, allows the imagination, innovation and solidarity of ETPL to be less easily stymied or obfuscated by appeals to a collective identity. Few laws or policies are invoked in the name of Europe, and where proposals are made it is not clear that doing this has many active effects. ⁶⁵

EU law's greatest authority, thus, rests in its enabling actors to do things that otherwise might not be so achievable. This is a permissive and enabling quality and is very visible in institutional practice. If, therefore, the Court of Justice continues to proclaim the formal precedence of EU law over national law, ⁶⁶ EU law increasingly derives more power from being copied. Many States transplant significant amounts of EU law into their national law. EU law provides the de facto global law in, inter alia, vehicle standards, ⁶⁷ data protection, ⁶⁸ competition, ⁶⁹ pharmaceuticals and cosmetics. ⁷⁰ Even when this does not happen, transnational enterprises frequently adopt EU law because it is cheaper, technically more expedient and organizationally easier to apply than their local law. ⁷¹ Mimesis is, furthermore, a wider feature of law within the EU. Best practice is institutionalized within bodies such as IMPEL (environmental law) or the European Competition Network (competition law), whilst studies have shown it is prevalent in fields as diverse as land use ⁷² and cancer. ⁷³ To be sure, this grants an uncomfortable hegemonic power to EU law. However, it avoids the prescriptiveness and inflexibility of legal commands and the capriciousness of laws adopted by dint of economic dominance or necessity. Actors have leeway to reflect not only on whether the law should be adopted or subsequently discarded, but also to adapt, tweak or embellish it, not merely at the time of adoption but also, over time, in the light of local demands or changes in circumstances.