The transformative politics of European private law

Abstract

This chapter should be read as an ideological (self-) critique of the role and function of critical legal scholarship in the rise of the “social” after 1960, first, at national level, later, at EU level. Critical legal scholars have all too often understood critical legal theory as practice of theory, in which law is there to help to protect the weaker parties in society and to compensate for the imbalance of power. The decline of the welfare state and the “neoliberal move” in the EU teaches us that law can be politicised not only to promote the “social” in the name of justice but also to de-construct the “social” in the name of economic efficiency. The revival of the political economy provides for an opportunity to re-think the role of law in the secular compromise between capitalism and democracy.