A. Private legal privilege

Pistor’s analysis of private law’s problematic coding of capital focuses on the creation and maintenance of wealth inequality. Private law is part of the basic institutions that structure society and shape power relationships between private actors, and across and between social groups. Pistor shows that private law is not some tangential element in a system supported by other more primary building blocks, but is a crucial building block itself, because ‘(…) capital owes its wealth-creating capacity to its legal coding.’Footnote ⁶ Capital, according to Pistor, should be understood as ‘(…) a legal quality that helps create and protect wealth.’Footnote ⁷

Pistor shows that anything (and anybody) can be an asset turned into capital through the right legal coding.Footnote ⁸ Yet through selective processes in private law, only some things (and some people) have undergone transformation in this way. And importantly, only some have gained the advantage of wealth accumulation as legal coding ensures the legal privileging of a select set of assets through recognition and enforcement by the power of the state.Footnote ⁹ This selective legal privileging of some assets and its holders plays a central role in Pistor’s critique.

B. Social injustice at the bottom

In response to this analysis of private legal coding of capital, Hesselink proposes a progressive European private law code. While Pistor offers incremental ‘roll back’ strategies, Hesselink’s ambitions are more radical. The proposal for a reconstituted code is meant to go ‘more to the root of the problem’. Hesselink labels the problem by marking staggering wealth inequality as a problem of social injustice, finding consensus based on influential contemporary theories of social justice:

These contemporary ideas of justice inform the diagnostic process of identifying social injustice in private law’s coding of capital. These are echoed in contemporary ideas of private law justice which shape the proposed radical remedial response, at least in terms of its basic structure and essential characteristics. For Hesselink, a progressive code should aim to bring ‘more social equality (less poverty)’ and ‘more interpersonal equality (less exploitation)’ as a matter of social justice.Footnote ¹¹ The aim of the proposal is to ‘make some progress’, presumable for those made most vulnerable to social injustice, rather than attempting to return to an ‘ideal past we’ve lost’.Footnote ¹²

C. Restoring equality?

Particularly those at the bottom of the economic order are meant to be prioritised in a radical vision of social equality, which builds on enduring ideas in European private legal discourse which invoke contemporary ideals of social justice.Footnote ¹³ But the language used leaves much uncovered in terms of the diagnosis of root problems through materialisation and contextualisation which is pivotal for Hesselink’s proposal to have the potential to represent a ‘radical’ remedial response.

The question of the root problems of socially unjust private law informs how and when reform may represent progress for those made most vulnerable to social injustice given their actual material circumstances. In the language of progress and ‘restoration’ resonates a tension that might undermine the aims of the proposal from the onset.

Underlying the idea of a radical response is the idea that a deeper, materialised understanding of social injustice is necessary – one that goes more to the root and one that is more grounded in the actual circumstances that shape people’s lives, particularly those made most vulnerable to deprivation and exploitation. Yet, Hesselink’s proposal is embedded in language that seeks to ‘restore’ equality and envisions the taking back of democratic control by a European public. It is quite unclear to what this ‘restoration’ of equality refers, especially as the language of restoration lives alongside the rejection of the idea that there is an ‘ideal past we’ve lost’ and an explicit call to ‘move forward’.Footnote ¹⁴ Ideas of ‘restoration’ certainly do not always centre people made most vulnerable to social injustices nor serve their interests in social justice. Perhaps the choice of words regarding restoration is a slip of the pen, given that the proposal for a progressive code hopes to locate the ‘better times’ in a yet-to-be-realised future.Footnote ¹⁵ What is more, the proposal offers an account of the civil code as ‘the ultimate symbol’ of colonialism, enabling plunder and enslavement.Footnote ¹⁶ It is clear then that restoration is not meant to speak to a more equitable historical state of affairs, for instance along gender, racial, and class vectors.

Yet, restoration implies an antecedent position, in this case, presumably a more equitable situation as it regards the positions of those made most vulnerable under capitalism, in part, by private law’s doing.Footnote ¹⁷ It is conceivable that this language of restoration is not used in error but appeals to a sense of restoration of ideals as provided by contemporary political theories and notions of social justice that reside in European private law discourse. The antecedent position being one that has been imagined in the theorising of justice and the theorising of more just private law. In other words, a position that exists in visions of more just social orders. Yet, theories of justice in contemporary Western political philosophy have been criticised for their abstraction away from material realities and historical contextualisation. For instance, concerns of racial, gender and disability injustice have played a marginal role at best in the theorising of social justice in influential contemporary political theories. Various types of critiques point out how minoritised and marginalised people tend to be excluded from the egalitarian parties that are imagined in the thought experiments from which principles of justice are derived.Footnote ¹⁸ Concerns about when and how those made most vulnerable enter conversations and considerations of social justice highlight potential obfuscation of root problems, which impact analyses of private law’s role in social injustice. These concerns also arise in relation to European private law discourse about vulnerability to identify who should, potentially, be centred in social injustice considerations. For instance, the consumer is frequently foregrounded, but not often in ways that seek to reveal root problems and structural forces that shape material circumstances.Footnote ¹⁹ If reconstituting the code aspires to offer a more radical response to root problems, how can concerns about exclusionary theorising of private law’s role in social injustice be addressed?

A. Intersectionality, law, and social justice

The term intersectionality was coined by Crenshaw in feminist and critical race theory, to capture the idea that people’s lives are impacted and defined by their social positions at the intersections of complex and entangled systems of privilege and oppression.Footnote ²¹ Arising from a long history of (and continuing development in) Black feminist work, intersectionality engages subjectivity as constituted simultaneously by gender, race, class, and sexuality – amongst others.Footnote ²² In the legal context, intersectionality has exposed productively how marginalised subjects are made invisible through law and legal theorising, thereby undermining struggles for social justice. For instance, Crenshaw illustrated how, through categories of gender- and race-based discrimination, the experiences of Black women remained invisible under legal regimes.Footnote ²³ On the one hand, patriarchal normativity focussed race-based discrimination on gender-dominant experiences of men, where on the other hand, racial normativity focussed gender-based discrimination on racially dominant white experiences. Crenshaw thus illustrated how these normativities manifested in legal illegibility and invisibility of injustices impacting Black women.Footnote ²⁴ This intersectional analysis thus invoked a critical reflection on the legal and political subject central in legal thinking and understanding of law’s relation to inequity and injustice. It showed that ‘representations of gender that are “race-less” are not by that fact alone more universal than those that are race-specific’.Footnote ²⁵

While intersectionality was coined and taken up in feminist and critical race theory as an approach to analyse experiences of oppression and expose intersectional oppressive dynamics,Footnote ²⁶ it has since travelled and developed in a multitude of spaces. Scholarship has expanded, for instance, to engage the potential and limitations of intersectionality as theory and methodology and as a lens for social activist and political interventions.Footnote ²⁷ In this broad understanding of the scope of intersectionality, experiences of oppression are deeply connected to analyses of how social positions are shaped as the result of multiple injustices, and to the underlying complex and mutually constructing systems that give rise to them.Footnote ²⁸ Intersectional insights that arise from such analyses show how capitalism is entangled with multiple systems, including those that give rise to gender and racial injustice. Intersectional approaches to diagnosing and remedying problems of social injustice start with a commitment to engage the ways in which multiple dimensions of injustice interlock and intersect in people’s lives.

Those engagements lead to theoretical insights without claiming or aspiring to be a ‘grand theory’.Footnote ²⁹ In highlighting the relevance of intersectional approaches for the project of reconstituting the code of capital, I don’t propose intersectionality as an alternative to other ideas of justice (whether those live in theories of justice, or in notions of social justice in European private law discourse). Rather, intersectional approaches can do the sort of work necessary to build and envision progressive private law, which responds to Hesselink’s aspirations for more radical change. This radical aspiration is about ‘going more to the root of the problem’, which depends on better diagnostics of socially unjust private law. Intersectional approaches offer improved diagnostics as they uncover mutually constitutive dynamics otherwise obscured. Intersectionality draws attention to and problematises universalising, essentialising, mutually exclusive categories and ideas that underlie and inform understandings of law’s relationship to justice, freedom and democracy.Footnote ³⁰ Notably, insights into the workings of capital and its inextricable entanglements with, for instance, gender and race can highlight root problems of socially unjust private law otherwise obscured. Centring marginalised experiences and voices to move towards a fuller accounting of the faces of inequality, inequity, and injustice that impact those most vulnerable in our social, political, and economic order offer an avenue to make visible how private law’s coding of capital is gendered and racialised. This is one avenue through which intersectionality can assist in the deep contextualisation and attentiveness to the material circumstances that shape the lives of those made most vulnerable in society.

B. Intersectionality and progressive private law

In this way, intersectionality seems pivotal for Hesselink’s ambitions underlying the proposed progressive code. He states: ‘Throughout, our understandings of justice, equality (interpersonal and distributive), and autonomy (private and public) should be thoroughly substantive (or “materialised” […] it should take serious account of the actual circumstances (socio-economic and other) in which people find themselves’.Footnote ³¹ But if this sort of materialisation is ‘necessary throughout’, intersectional approaches should have a central place in an analysis of the basic frame of a progressive code and in the perspective of and approaches to justice that we use to mould progressive interventions. Intersectionality is a way to ‘take serious account’ of people’s life circumstances when envisioning progress in a reconstituted code.

Yet so far, the current proposal for progress has insufficiently taken on this stated need for materialisation and inclusive theorising. Instead, intersectional approaches seem to be marginalised or relegated to exclusion in the footnotes, either on the basis of being ‘wholly unrelated to the coding of capital’ or as being among the ‘other injustices in European private law than those following from the code of capital’.Footnote ³² Both reasons leave unclear what ‘intersectional’ means in this specific reference, given that ‘capital’ is inextricably entangled with race, gender, sexuality, and nationality – among others – in intersectional scholarship. It is hard to comprehend the progressive code as progressive when the entanglement of multiple vectors of injustice are beyond the scope of the diagnosis of root problems.

As an intervention to private law’s complicity in social injustice, the attempt to reconstitute the code and claim its progressiveness seems premature. The radical potential of private law is undermined when we understand its coding of capital in isolation of other, intersecting mutually constructing dynamics of privilege and oppression. To clarify, I do not mean to claim that this attempt to reconstitute the code of capital has overlooked or postponed other concerns of injustice (eg, also gender injustice or also racial injustice) in an undesirable fashion.Footnote ³³ Rather, the point is that this intervention of targeting private law’s coding of capital is non-intersectional and fails to go to root problems from the onset, even though it aspires to be radical in precisely this way. An approach to elevate root problems should not move to shape remedies based solely on the insights of how private law codes capital – how insightful and important that analysis may be – but should more deeply invest in the understanding of how private law has coded this pattern of wealth distribution and perhaps even why private law has coded capital in this way. My critique intends to place a question mark behind the idea that a reconstitution of private law based on a diagnostic process of gender-less, race-less capital is inclusive, progressive, or radical in social justice terms. In other words, I don’t intend to raise a ‘what about’ question, but rather ask: this reconstituted code would make progress towards what?

C. An intersectional paradigm shift

If a progressive European code takes on the ambition to be part of an attempt to ‘set things right’, it is important to have a fuller accounting of social injustice and its relationship to European private law. It is the insights of the inextricable entanglements of capital, I contend, that are needed to enable the sort of ‘paradigm shift’ that Hesselink envisions. This contribution does not aim to offer an (comprehensive) overview of the various ways in which intersectional work reveals capital’s entanglements,Footnote ³⁴ but rather to illustrate the potential value of engagement for diagnostic and remedial purposes.

Intersectionality invites the examination of private law’s role in the political, social, and economic order, not only around economic power and accumulation of wealth under capitalism, but also around a deeply racialised and gendered order of production, reproduction, and reaping of the benefits of exploitation and extraction. These parts of the puzzle are too often neglected in discussions about the economy,Footnote ³⁵ and they remain nearly invisible in the discourse on the role that European private law plays in injustice and could play towards more radical interventions and remedies.Footnote ³⁶

Attempts to make the complex and interlocking entanglements visible could build on examinations of the mutually dependent workings of race and gender with capitalism.Footnote ³⁷ The mutually constituting relationship between capital and gender is at the heart of familiar feminist stories of gendered social reproductive labour, of distinctions of family/market and private/public, which tell us that the primary subsidies to capitalist wealth creation and the holders of capital come from women.Footnote ³⁸ Gendered subsidisation of capital comes from women who disproportionately do ‘non-economic’, unpaid labour that ‘precedes “work”, or underlies it or runs alongside to make the stuff of economics possible’.Footnote ³⁹ And those who are relegated to the bottom of the market and whose wages barely cover their subsistence are often poor women of colour, who when engaged in care and domestic labour often enable racially privileged middle-class women to outsource such gendered labour.Footnote ⁴⁰ It has been ‘workaday wives, doting mothers, put-upon sisters, almost invisible spinsters, aunties and whores, mammies and ayahs, maids and lovers and landladies’ who have undertaken the life-sustaining activities that were and continue to be the preconditions for economic activity and a functioning order, yet who have often been marginalised in our understanding of how excessive wealth is created and how its disproportionate distribution comes to be.Footnote ⁴¹

Private law codes these forms of subsidisation (for instance, through contract), and this coding tends to follow patriarchal and racial logics. In European legal thinking, the conventional ways to understand such private law coding are through interpersonal and distributive framing. These ways of approaching and understanding private law’s role in social injustice include using the lenses of discrimination and distribution. By thinking about discrimination, for instance, we may reveal potentially indirect or direct, and potentially unconscious or malicious forms of differential treatment across gendered and racialised people and groups for profit making, capitalist purposes. We may find that private law – like anything else – can be used for racist and sexist purposes in the course of economic activity (by clearly identifiable bad apples: racists and sexists). Another familiar lens for understanding the relationship is to attend to distributive outcomes. Notably, distributive analysis may reveal the gendered and racialised distributive unjust economic outcomes of private law. These conventional frames reveal important aspects of private law’s relation to social injustice, and they are certainly not the only ways in which the relationship between private law and social injustice can be understood.

Yet, I worry that non-intersectional renditions of these approaches would fall short of offering a sufficiently full accounting of root causes necessary to envision radical remedies and support claims of progressiveness of a reconstituted code.Footnote ⁴² Namely, often these analyses position instances of injustice as potential exceptions to an otherwise just private legal system. Gendered and racialised aspects of social injustice can be and often are framed as marginal, irrational, and exceptional instances of private law’s coding of capital. The problem of wealth accumulation and its disproportionate distribution remains separate, or at least separable, from vectors of gender and race – amongst others. In this view, racial patriarchal elements can be removed from the private law code and a relatively clear pathway for a transformation to a progressive code can rely on familiar ideas of justice that produced antecedent, status quo versions of the code. Exceptional violations of justice can be isolated from the sort of moral order that progressive principles can envision and establish.

Bringing in intersectional approaches to understanding private law’s relation to social injustice raises a different set of questions and invites alternative ways of uncovering and understanding root problems, including the gendered and racialised subsidising of capital.Footnote ⁴³ For instance, instead of understanding private law, that is, the code of capital, as treating or impacting gendered and racialised ‘others’ differently, we may ask how private law in a racial patriarchal order structures the patterns of capital.Footnote ⁴⁴ How, for instance, does private law help to naturalise the subsidisation of capital by poor women of colour in the European context?Footnote ⁴⁵ Such examinations would connect people’s positions to structural injustices and offer insights into the root causes of their material conditions within and vis-à-vis the European social, political, and economic order. It offers a different way of thinking about the relationship between capital and private law in Europe – an intersectional paradigm shift.

A. Progressive European identities

European egalitarian and progressive self-understandings can form an obstacle to embrace intersectional approaches in European private law. If racial patriarchal dimensions of the social order are in question, or only acknowledged when blatant and explicit, intersectionality will suffer in terms of credibility in legal academia. Some have described a (Western) European ‘way of being in the world’ as deeply connected to colourblind ideals through which ‘the “American type” of racism’ is positioned as external to European conceptions of self.Footnote ⁴⁷ This can make it particularly hard to expose and make legible insidious and implicit ways in which private law may potentially draw upon and reproduce racist, misogynist, xenophobic logics, incorporating and constructing ethnic-, racial-, and gender-based social injustice.Footnote ⁴⁸ Common ways of thinking about private law may also contribute to resistance, especially when private law’s relation to social justice is approached as irrelevant, agnostic, benign, or remedial. Intersectional work that endeavours to show how European private law has been counterproductive to social justice and complicit in social injustice includes putting together puzzle pieces to examine how private law has coded capital in configuration with race and gender.

B. An illustration of puzzling reproductions

Pistor remarks that urban housing is one of the most important sources of wealth today.Footnote ⁴⁹ But for whom is housing coded as wealth creating? As an example of private law entanglement with capital, race, and gender, housing offers a key illustration. We cannot understand the patterns of wealth associated with urban housing and the role that private law has played in creating these types of patterns by looking at capital, as if it exists independently of other logics. In the US context, several influential works show how, as a source of wealth, Black homeownership has been structurally undermined, particularly for Black women. These studies offer glimpses of the role private law plays in the creation and maintenance of racial patriarchal patterns of unequal wealth through real estate property in the US.Footnote ⁵⁰ For instance, in an analysis of racial housing segregation, Rothstein notes how private law, notably contract law, functioned to support racial exclusion from capital. In the first half of the 20^th century, Rothstein identifies racist promises as the basis of racial exclusion from capital. Notably, racial clauses (enforced prior to 1948) in deeds and pacts restricted future sales to white people and prohibited future sales to people of colour.Footnote ⁵¹ Rothstein quotes a restrictive covenant from 1925 which states ‘(…) no part of said premises shall be used (…) for any structure other than a dwelling for people of the Caucasian Race’.Footnote ⁵² Rothstein describes how such clauses travelled from bilateral contracts to contracts between owners in a neighbourhood, and into bylaws of mandatory community and neighbourhood associations.Footnote ⁵³ Research reveals how white homeowners, real estate agents, developers, lawyers, and courts across the US adopted similar private legal strategies which preserved racial exclusion from capital.Footnote ⁵⁴ When the state stopped endorsing such private law strategies, racial exclusion from capital morphed into objective standards of ‘property value’ and ‘risk’ through racist ideas that home values declined through the proximity of Black families.Footnote ⁵⁵ What continued were the extractive and exploitative contractual lending arrangements that made Black contractors structurally at risk of losing their home based on inflated monthly payments that undermined the availability of disposable income for repairs and maintenance.Footnote ⁵⁶ Houses owned by Black families declined in value and White people moved away from neighbourhoods with increasing Black homeowners, based on reasons in which race and capital were inextricably entangled.

In ‘Race for Profit’, Keeanga-Yamahtta Taylor shows how Black women became the image of ‘unsophisticated buyers’ in this context, through racial patriarchal capitalist logics. Black women who engaged in low-income homeownership programmes, which involved poor people becoming owners of poor housing, were ‘portrayed as unsophisticated and domestically dysfunctional, evidenced by the alleged difficulty with the simple maintenance of their homes’.Footnote ⁵⁷ And Black women were depicted ‘as “ignorant” and “foolish” for buying houses that were in such disrepair.’Footnote ⁵⁸ The details of how Black women consumers faired on the housing market due to legal coding are certainly more complex than acknowledged here, but these narratives of wealth and urban housing reveal evident entanglements of private law with capital, race, and gender. This research reveals how attempts towards market inclusion – including seemingly progressive shifts in private law – reproduced and coexisted alongside continued racial and gendered exclusions from wealth-creating forms of homeownership. Of course, this analysis must include movements in law and policy beyond private law as well, as private law’s coding of capital does not exist in isolation. But if we are seeking to understand private law’s role in wealth creation, in this instance through housing, centring race and gender with capital is crucial to understanding root problems of social injustice. Racial gendered exclusions from wealth-creating forms of homeownership continued through progressive attempts towards inclusion. For Black women, homeownership was not legally coded to be a form of wealth creation, but as an anchor to (exacerbating) poverty.Footnote ⁵⁹

C. European intersectional contextualisation

Of course, private law’s role in Black women’s exclusion from wealth-creating forms of homeownership can be read exactly as the ‘American type’ of racism that does not occur in Europe. European private law needs its own contextualisation and stories of its entanglements with capital, race, and gender.Footnote ⁶⁰ European legal discourse needs to bring in examinations of the unique ways in which its private laws have coded racial patriarchal capital to the detriment of some and the benefit of others.Footnote ⁶¹ In offering this illustration, I merely intend to show the sort of work that can help expose how explicit forms of racial patriarchal market exclusions can transform into the insidious forms that private law may reproduce and maintain. Ideas about ‘sophisticated’ buyers, ‘average’ consumers, and ‘risky’ contractors are familiar under European private law which need their own racial gendered contextualisation. Intersectional approaches are central to uncover how seemingly progressive law may unintentionally rely on and draw in racist, misogynist, xenophobic logics, incorporating, and constructing ethnic-, racial-, and gender-based social injustices. If radical aspirations for European private law should have a chance to address root problems, we ought to abandon the language that frames progress in terms of restoration. Reform should build on work that seeks to uncover how private law codes patterns of wealth, which must engage capital’s entanglements with race and gender in the European context.