This article analyses the role of comparative analysis in free movement judgments of the Court of Justice of the European Union (CJEU). It argues that comparative analysis plays an important role in how the CJEU decides the outcome of free movement cases and that free movement law should thus be characterised as a comparative law method. The argument is developed in three steps. First, comparative analysis takes place in all structural parts of free movement cases. It is not exclusively or even primarily limited to the proportionality test. Second, the role of comparative analysis is directly linked to the effective application of the free movement provisions. This means that comparative analysis is not only relied on to engage in standard-setting (‘calibration’) in free movement cases—it is also used to determine which cases should fall within the scope of application of the free movement provisions (‘demarcation’). Third, because of the close relationship between comparative analysis and the effective application of the free movement provisions, it is possible to characterise negative integration as a comparative law method. Although one component of this method is based on the traditional functional method in comparative law, the main comparative method in free movement law is closely linked to cosmopolitan pluralism, because negative integration provides a ‘frame’ or structure through which Member States are required to investigate and respond to the national laws of other Member States. This method can be described as ‘the law of differentiation’, because it identifies, analyses the extent and assesses the legitimacy of differences in national laws in the context of the internal market.

This article argues that a distinction between the public and the private is both desirable and feasible in times of global governance, at least as a regulative idea. The confusion surrounding this distinction originates in different understandings of the relationship between state and society in liberalism and republicanism. Discourse theory with its idea of the co-origin of democracy and human rights reconceptualises the relationship between state and society in a way that does justice to both liberal and republican approaches. Accordingly, the public/private distinction is crucial for the realisation of democracy and freedom. Classifying an act as public or private determines what kind of legitimacy it requires. The article then recalibrates discourse theory to face the challenges of global governance, shifting its focus from hard law to a broader notion of authority, and from the state to a pluralistic, cosmopolitan world order composed of multiple overlapping communities. A community is characterised by communicative action and a common identity. In such a setting, public authority is the authority exercised on behalf of a community in relation to its members. In relation to non-members, the same act may constitute an exercise of private authority. It is a different question whether such authority is legitimate. Some examples illustrate the approach.