What Is Transformative Law

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European Law Open (2022), 1, 760–780

doi:10.1017/elo.2023.1

CORE ANALYSIS

What is transformative law?


Poul F. Kjaer
Department of Business Humanities and Law, Copenhagen Business School, Frederiksberg, Denmark
Corresponding author. E-mail: pfk.bhl@cbs.dk

(Received 4 November 2022; revised 30 December 2022; accepted 30 December 2022)

Abstract
In the western context, law has two functions. It upholds normative expectations and it transforms social
phenomena. The latter is expressed through the form-giving function of law, as law designates particular
social phenomena, such as, for example, economic, political or religious. Inside such overarching catego-
ries, further subcategories can moreover be observed. In relation to economic processes, the legal institu-
tions of competition, contract, corporation and property are, for example, classical examples of the form-
giving function of law. The dual function of law is briefly illustrated through a genealogy of imaginaries of
law distinguishing between four historically dominant types of law: ‘Law as purpose’; ‘law as a tool’; ‘law as
an obstacle’; and ‘law as reflexivity-initiation’. On this background, ten core dimensions of what might
become a new episteme of transformative law are fleshed out with the aim of answering the question
to what extent it can act as an alternative to the previous four types of law.

Keywords: function of law; form-giving; infrastructural power; law of political economy; reflexive law; rights; time and law;
transformative law

1. Introduction: beyond ex ante and ex post


Upholding normative expectations is a key function of law.1 This insight indicates that law has a
conservative DNA to the extent that it is oriented towards the use of present reconstructions of the
past to reaffirm existing norms with the purpose of transposing them into the future. However,
law transforms, too. A key characteristic of world society in its manifold local, national and trans-
national contexts is the sustained demand for legal norms in the attempt to stabilise but also
expand and transform all sorts of social processes. As apparent from the other contributors to
this special issue, the legal institutions of competition,2 contract,3 corporation4 and property5
are – among many others – key examples of this. On this backdrop, elements of a concept of
transformative law is outlined as relying on an epistemological understanding of law as form-
giving. It is through form-giving that law constitutes a social phenomenon as a legal institution
and it is form-giving which gives law a strategically central position in society. How law and legal
scholarship have dealt with the form-giving function over time is briefly illustrated through a
genealogy of imaginaries of law distinguishing between four historically dominant types of law

1
N Luhmann, Das Recht der Gesellschaft (Suhrkamp Verlag 1993).
2
See the contributions of Or Brook and Ioannis Lianos to this special issue.
3
See the contributions of Daniela Caruso and Klaas Eller to this special issue.
4
See the contributions of Marija Bartl and Lilian Moncrieff to this special issue.
5
See the contribution of Jean-Philippe Robé to this special issue.
© The Author(s), 2023. Published by Cambridge University Press. This is an Open Access article, distributed under the terms of the Creative
Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction,
provided the original article is properly cited.

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European Law Open 761

in the western context: ‘law as purpose’; ‘law as a tool’; ‘law as an obstacle’; and ‘law as reflexivity-
initiation’.6 On this background, the core dimensions of transformative law are fleshed out with
the aim of answering the question to what extent it can act as an alternative to the previous four
types of law. It is emphasised that the potentiality of transformative law can be boiled down to a
question of time as it is in the tension between ex ante and ex post law the crux of transformative
law lies.7
Hence, a twofold strategy is unveiled. On the one hand, the article provides a conceptual frame-
work situating the remaining contributions of this special issue. On the other hand, it also goes
further by engaging in a dual (de-)constructing exercise of transformative law, including of its
origin, novelty, possible effects and potentialities.

2. The strategic position of law in society


Modern law in the Western sense emerged with the legally defined and maintained differentiation
between religion and politics in the wake of the Investiture Conflict between Emperor and Pope
from 1076 to 1122.8 The dispute emerged due to the administrative law question concerning
which of the two had the competence to appoint abbeys and bishops. However, more generally,
it was about who was the sovereign, ie who stood above who. The emperor or the pope? The
conflict ended with a compromise. The emperor was recognised as the sovereign of the worldly
world and the pope as the sovereign of the spiritual world. The pope could thus appoint abbeys and
bishops, but they had to swear allegiance to the emperor. The church thereby retained the monopoly
on interpreting the religious text, but when the representatives of the church acted in worldly affairs
in relation to everything from tax collection to military mobilisation, it was the emperor that came
into play. The consequence was the creation of two different universes – the religious and the polit-
ical – that were reproduced in parallel while being closely linked. Using legal instruments, the two
universes were differentiated and interconnected at the same time. Tax revenues, blessings and other
components of meaning could be transferred by legal means from one legally defined parallel
universe to another.9 The function of the law as differentiator and interconnector necessitated
the development of a refined conceptual apparatus. Hence, it was hardly a coincidence that the
Investiture Conflict coincided with the foundation of the first university in 1088 in Bologna.
A university that had the reformulation of Roman and canon law as its primary focus point thereby
initiating the creation of the modern legal profession.
From the 16th century onwards, the logic behind the differentiation and interconnection of
religion and politics through legal means was, in the European context, extrapolated to the rela-
tionship between economy and politics. Prior to the introduction of the distinction between the
‘economic’ and ‘political’ dimensions of society the institution of the household, from the manor
to the court, was the central organising form of social processes providing an integrated institu-
tional repository for the exercise of power and socio-economic reproduction.10 The 16th century
6
For the concept of imaginaries of law see M Bartl, ‘Socio-Economic Imaginaries and European Private Law’ in PF Kjaer
(ed), The Law of Political Economy: Transformation in the Function of Law (Cambridge University Press 2020) 228–53. See
also the contributions of M Bartl and L Moncrieff to this special issue.
7
KH Ladeur, ‘The Emergence of Global Administrative Law and Transnational Regulation’ 3 (3) (2012) Transnational Legal
Theory 243–67.
8
HJ Berman, Law and Revolution: The formation of the Western Legal Tradition (Harvard University Press 1983);
H Brunkhorst, Critical Theory of Legal Revolutions: Evolutionary Perspectives (Bloomsbury 2014). The western focus means
that what follows only have validity in relation to legal processes, irrespectively of where they are unfolded, which can be
understood as part of the western understanding and institutional form of law. The implications of this for alternative legal
forms of law is the subject of another publication. See PF Kjaer, ‘Global Law as Intercontextuality and as Interlegality’ in
J Klabbers and G Palombella (eds), The Challenge of Inter-legality (Cambridge University Press 2019) 302–18.
9
H Brunkhorst, Critical Theory of Legal Revolutions: Evolutionary Perspectives (Bloomsbury 2014) 90ff.
10
N Elias, Die höfische Gesellschaft: Untersuchungen zur Soziologie des Königtums und der höfischen Aristokratie (Suhrkamp
Verlag [1969] 2007).

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762 Poul F. Kjaer

emergence of the concept of ‘political economy’ however indicated the moment where economy
and politics started to become differentiated. ‘Political economy’, in other words, only became a
relevant concept in the moment a distinction could be observed between the political and the
economic dimensions of society as this created a functional and normative need to problematise
and to stabilise the relationship between these two dimensions of society.11 Also in this context,
law was the central conceptual and practical framework. Especially the expansion of property
rights, and with it the conceptual distinction between private and public, was the crucial institu-
tional formation allowing for this development.12 The crux of the emergence of political economy
was a dual and simultaneous move towards differentiation and reconnection as expressed in the
intertwined nexus of property rights and taxation with both of them unfolding within a specific
legal form. It is first with the separation of the economy from the political sphere through property
rights that taxation, ie the transfer of resources from the economy to the political system became
possible.13 In the same manner as the conceptuality of modern statehood emerged out of Christian
theological conceptuality,14 the political economy problematique and the law of political economy
was a secondary appearance of a logic that originally emerged in the nexus between religion and
politics.15
Since the legally instigated differentiation and interconnection of politics and religion and the
subsequent differentiation of economy and politics, the function of law as simultaneous differen-
tiator and interconnector has extrapolated multiple times. This can, for example, be observed in
the striving towards the expulsion of religious doctrines from the classroom, ie the separation of
religion and education and the manifold legal questions and conflicts emerging from this.16 The
formation of modern science as an activity ideally based on the search for truth free from
economic, political and religious interference as for example expressed through legal codification
in university constitutions is another classical example.17 The conundrums of modern sports law
faced with questions of structuring the interface between sports, on the one hand, and medicine
(eg doping) and economic influence due to increased commercialisation, on the other hand, is yet
another example.18 In all these cases, and many more could be thought of, law is concerned with
erecting boundaries between different dimensions of society while also allowing for interfaces
within strict legal forms enabling transplantations of components of meaning, such as religious
texts, science funding or pharmaceutical products, from one dimension to another in a legally
distilled and controlled form.19
The function of law as simultaneous differentiator and interconnector gives it a particular posi-
tion in society. Not a position of outright supremacy but instead one as an infrastructural grid.
Michael Mann conceived of state power as infrastructural power distinguishing it from despotic
power.20 Despotic power Mann understands as actions undertaken by state elites ‘without routine,
institutionalised negotiation with civil society groups’21 and infrastructural power as ‘the capacity

11
PF Kjaer, ‘The Law of Political Economy: An Introduction’ in PF. Kjaer (ed), The Law of Political Economy:
Transformation in the Function of Law (Cambridge University Press 2020) 1–30.
12
See the contribution of Jean-Philippe Robé to this special issue.
13
For more on this see the contribution of Jean-Philippe Robé to this special issue.
14
EH Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton University Press [1957] 1997).
15
A de Montchrestien, Traicté de l’oeconomie politique, edited by F Billacois (Librairie Droz [1615] 1999).
16
JE Harpster, ‘Religion, Education and the Law’ 36 (1) (1952) Marquire Law Review 24–66.
17
J Habermas, ‘Für ein neues Konzept der Hochschulverfassung‘ in J Habermas Protestbewegung und Hochschulreform
(Suhrkamp Verlag 1969) 157–85; E Zilsel, ‘The sociological Roots of Science’ 47 (4) (1942) The American Journal of
Sociology 544–62.
18
PF Kjaer, ‘Law and Order Within and Beyond National Configurations’ in PF Kjaer, G Teubner and A Febbrajo (eds), The
Financial Crisis in Constitutional Perspective: The Dark Side of Functional Differentiation (Hart Publishing 2011) 395–430.
19
Ibid., 398f.
20
M Mann, ‘The Autonomous Power of the State: Its Origins, Mechanisms and Results’ 25 (2) (1984) European Journal of
Sociology/Archives Européennes de Sociologie/Europäisches Archiv für Soziologie 185–213.
21
Ibid., 188.

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European Law Open 763

of the state to actually penetrate civil society, and to implement logistically political decisions
throughout the realm’.22 In a slightly different take he also describes infrastructural power as
‘the power of the state to penetrate and centrally co-ordinate the activities of civil society through
its own infrastructure’.23 This perspective might be considered ‘methodological state-centric’,
discarding non-state-centric forms of local and transnational power, – just as the, essentially
Hegelian, distinction between state and civil society is rather simplistic and reductionist given
the manifold differentiations between economy, education, politics, religion, science (and so forth)
characterising modern society. More central to this article is however that, according to Mann,
‘there is virtually no technique [of infrastructural power] which belongs necessarily to the state, or
conversely to civil society’.24 Hence, infrastructural power is societal power, with the concept of
society denoting the category of all social communications and phenomena in world society.25 The
concept of society thereby transcends established distinctions such as private/public, state/civil
society and the tripartite local/national/transnational distinction. An adequate understanding
of infrastructural power is therefore conditioned by a corresponding concept of society and indeed
its conceptual incorporation and unfolding within the framework of a general theory of society.26
Even more central to this article, is, however, that Mann mixes up the categories of power and law.
It is law and not power, understood as political power, which provides society with an institutional
grid as also expressed in the law’s role as simultaneous differentiator and interconnector, as
outlined above. While power is intrinsic to all social relations, political power is a specific kind
of power distinguishable from personal power due to its abstractness and generalisability as
derived from its legal form. In this specific sense, it is law that constitutes political power as a
specific social phenomenon.27 As will become apparent below, form-giving and synchronisation,
ie the harmonisation of time structures, are the central ways the simultaneous and dual differ-
entiator and interconnector function manifests itself. A function which might be considered
the second key function of law besides the upholding of normative expectations. A function which
however have been unfolded and reflected upon differently at different times, as also expressed in
the understanding of ‘law as purpose’; ‘law as a tool’; ‘law as an obstacle’ and ‘law as reflexivity-
initiation’.28

3. Law as purpose
As is well known, a decisive transformation in the self-understanding of law was initiated in the
German speaking part of the world in the first half of the 19th century. Advanced by Friedrich Carl
von Savigny and others within the German Historical School of Jurisprudence, this transforma-
tion of law became itself an object of study through Max Weber’s subsequent sociological
22
Ibid., 189.
23
Ibid., 190.
24
Ibid., 194.
25
N Luhmann, Die Gesellschaft der Gesellschaft (Suhrkamp Verlag 1997) 145–70.
26
PF Kjaer, ‘How to Study Worlds: Or Why One Should (Not) Care about Methodology’ in M Bartl and JC Lawrence (eds),
The Politics of European Legal Research: Behind the Method (Edward Elgar 2022) 208–22.
27
See also PF Kjaer, ‘European Crises of Legally-Constituted Public Power: From the “Law of Corporatism” to the “Law of
Governance”’ 23 (5) (2017) European Law Journal 417–30, 418–21. In addition, ‘anti-institutional’ political endeavours might
proclaim to rely on alternative forms of power but only in the form of a negative definition of such power as ‘non-institu-
tionalised’, ie non-legally defined. See eg M Punch, ‘The Sociology of the Anti-Institution’ 25 (3) (1974) The British Journal of
Sociology 312–25.
28
The distinction between these four types of law have some elements in common with and also draws upon Duncan
Kennedy’s distinction between ‘classical legal thought’, ‘social legal thought’ and recent US–American legal thought but
the periodisation differs somewhat just as this underlying question concerning the function of law and hence the knowledge
interest is a fundamentally different one. See D Kennedy, ‘Three Globalizations of Law and Legal Thought: 1850–2000’ in DM
Trubek and A Santos (eds), The New Law and Economic Development: A Critical Appraisal (Cambridge University Press 2006)
19–73. For the alternative and with a stronger European focus: Kjaer (n 11) 1–30.

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764 Poul F. Kjaer

reconstruction of it at the turn of the 19th century.29 The historical school developed a notion of
jurisprudence enabling an understanding of it as an objective science that observed law as a system
that was coherent and rational. Based on a deductive method, a scientific universe could be created
in which all legal norms fitted in and supported each other in a coherent manner. The law and its
unfolding thus became an objective in itself in two different ways. Internally, the ideal was that the
law should be positivist, ie build on the laws own basis and not on external moral, political,
religious or other factors. The distinction between morality, acting as a meta-category, and
law thereby became central for the constitution of the autonomy of law. The law was – by itself
– given the right to have right without, in principle or conceptually, having to take external factors
into account. The law thus became an end in itself. Externally, the law was conceived of as
providing an optimal framework for the organisation of society, understood as an optimal degree
of simultaneous differentiation and interconnection of different social processes. An under-
standing of law which was intimately linked to the concept of society to the extent that law
was considered to emerge from ‘the people’ (das Volk), understood as an equivalent to ‘society’,
rather than from the state. This was also reflected in the understanding of private law, especially
contract law, as the central form of law. Consequently, a staunchly methodological individualist
perspective was advanced emphasising a strict formalistic approach to the equality of legal
subjects. The perfectly legally regulated society thus also became an objective in itself. An objective
which Weber and others captured and linked to progressive liberal ideas of a democratic state and
a neutral public bureaucracy.30

4. Law as a tool
After a long run that stretched back to the latter half of the 19th century, the tremors of World War
I allowed for the emergence of a new conception of law as a tool. The law was increasingly consid-
ered to be an instrument that could be used as a lever for ideological projects and for the realisa-
tion of political objectives within a corporatist framework. Common to otherwise very different
ideological currents such as anarchism, fascism, communism, National Socialism and socialism,
which to different degrees experienced their breakthroughs in the interwar period, was that they
reinterpreted the status of law in society. Contrary to the idea of the law as a purpose, the new
ideological currents regarded law as an obstacle for the fulfilment of political utopias. Alternatively,
and less radically, they regarded law as a tool that could be used to realise political objectives without
the law being considered as an end in itself or as having an independent influence on the develop-
ment of society. Law in other words became increasingly conceived of as a tool for social engineering
and the broader social sciences, such as economics, management studies and sociology became the
core source of inspiration and the ideal model legal scholarship sought to replicate.31 In practice, this
meant an instrumentalisation and downgrading of the status of law, albeit with a very large degree of
difference in the broad span from anarchism to socialism. To the extent rights were invoked they
moreover tended to be collective rights. While the German Historical School of Jurisprudence had
emphasised individual freedom, social justice and rights, for a particular group, ie a specific ‘class’,
‘ethnic group’, ‘profession’ or ‘race’ moreover became a common focus point for the otherwise very
different ideological streams under the ‘law as a tool’ perspective. The form-giving function of law
was in this context deployed and instrumentalised with the function of differentiating specific
groups and augmenting the advantages of one group vis-à-vis other groups.32
29
M Weber, Rechtssoziologie. Aus dem Manuskript herausgegeben und eingeleitet von Johannes Winckelmann (Hermann
Luchterhand Verlag 1960).
30
M Weber, Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie (Mohr Siebeck [1922] 1980) 825ff.
31
For an overview see Kennedy, ‘Three Globalizations of Law and Legal Thought: 1850–2000’ 19–73, 37ff.
32
See the contributions in C Joerges and NS Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National
Socialism and Fascism over Europe and its Legal Traditions (Hart Publishing 2003).

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The struggle between the understanding of law as an objective or the law as a tool unfolded over
decades and continues in many ways today.33 In many western national contexts, a de facto
compromise was however reached in the post-WWII neo-corporatist period with elements from
both camps present in daily practice and the organisational setup of core institutions of political
economy.34 From the outset, labour law was the core area of experimentation for law as a tool
approaches.35 The development of the welfare state in the years before and after 1968 moreover
implied strong tailwinds for the law as a tool approach, as other welfare-related policy areas such
as education, social security and elderly care became increasingly central.
The way the ‘law as a tool’ approaches were deployed and the effects produced however
underwent a drastic transformation after 1945. With central and eastern Europe under Soviet
control post-1945, the Western European settings became central for the development of
across-the-board universal legal frameworks – frameworks that were transnational in nature
but were implemented in different national settings.36 This especially took the form of the
nation-wide labour market and welfare regimes based on a principle of universal inclusion
and characterised by extensive synchronisation of a manifold of social processes throughout
national contexts within formalised legal regimes.37 Hence, while the ‘law as a tool’ approach
remained dominant, in contrast to the interwar period, it was coupled with ideas of democratic
universalism, formalisation of institutions and decision-making procedures, as well as societal-
wide synchronisation.38

5. Law as an obstacle
Combined with exogenous factors such as the oil-price shock, the explosive growth of the
(welfare) state led to a governing and financial crisis in the 1970s in many western settings.
The state’s complexity in everything from budget size, number of employees and policy areas
increased sharply throughout the western world, while the state’s overall legal framework, eg basic
constitutional structure, in most cases remained a leftover from the 19th century with evolutionary
evolved labour and welfare regimes added ‘on top’. In this context, the law increasingly was
perceived of as a straitjacket associated with an old-fashioned Obrigkeitsstaat, ie authoritarian
state, and thereby as an obstacle to the realisation of the social objectives associated with the
evolving welfare state,39 while from another perspective, it was seen as a danger to personal
freedom and societal dynamism.40
One of the many consequences, in particular in the US-American setting, was the development
of the law and economics episteme, ie the analysis of the law as it is and should be, in a positivist
and normative sense, using microeconomic methods.41 Law and economics was furthermore
33
For an illustration of the ongoing struggle in relation to competition law, see the contribution of Or Brook to this special
issue.
34
Kjaer (n 11) 1–30.
35
For a reconstruction see especially R Dukes, The Labour Constitution: The Enduring Idea of Labour Law
(Oxford University Press 2014); See also O Kahn-Freund, Labour and the Law (Hamlyn Trust 1972); H Sinzheimer,
Arbeitsrecht und Rechtsoziologie. Gesammelte Aufsätze und Reden, edited by Otto Kahn-Freund and Thilo Ramm
(Europäische Verlagsanstalt 1976).
36
PF Kjaer, ‘The Transnational Constitution of National Social Market Economies: A Question of Constitutional
Imbalances?’ 57 (1) (2019) Journal of Common Market Studies 143–58.
37
PF Kjaer, ‘Towards a Sociology of Intermediary Institutions: The Role of Law in Corporatism, Neo-Corporatism and
Governance’ in M Rask Madsen and C Thornhill (eds), Law and the Formation of Modern Europe: Perspectives from the
Historical Sociology of Law (Cambridge University Press 2014) 117–41.
38
Ibid.
39
Eg J Habermas, Legitimitätsprobleme im Spätkapitalismus (Suhrkamp Verlag 1971).
40
Eg M Friedman and R Friedman, Free to Choose: A Personal Statement (Hartcourt 1980).
41
K Grechenig and M Gelter, ‘The Transatlantic Divergence in Legal Thought: American Law and Economics vs. German
Doctrinalism’ 31 (2008) Hastings International and Comparative Law Review 295–260.

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766 Poul F. Kjaer

supplemented with a large number of non-legal management approaches up through the 1970s
and 80s – approaches which subsequently were collected under the management episteme
New Public Management (NPM) and later followed up by the New Public Governance (NPG)
episteme.42 The shared objective of these three epistemes was to increase dynamism and efficiency
in the public sector and in private–public grey zones, ie the networks and partnerships
surrounding the core of the public sector, through the introduction of competition, privatisation,
outsourcing, financial incentives and removal of ‘red tape’. The ultimate societal unit which this
type of law departed from was therefore ‘the market’ in the sense that, in principle, all social
processes were conceived of in market terms, either operating as markets or legally and manage-
rially constructed, in a manner aimed at allowing them to mimic market-based processes.
Economic actors, modelled on the image of the individual, thus became central bearers of rights
as for example expressed through EU internal market law and the four freedoms concerning free
movement of goods, capital, services, and people.43 The legal ideal and core normative idea was
thus one of law enabling as free and optimised economic social exchanges as possible with market
exchanges understood as the ideal type of social exchange which other forms of social exchanges
should aspire to mimic. The idea of governance enshrined in this episteme was, thus, one where
public authorities mainly acted as facilitators of market optimisation. Contracts or public-sector
pseudo-contracts thus became central legal instruments, just as the boundary between law and
politics became the central ideological point of dispute.
From the perspective of the ‘law as an obstacle’ episteme, the law was again perceived of as
blocking the release of adaptation and dynamism throughout society. At the same time, and quite
paradoxically, functional equivalents to formal law were in strong demand. This was, for example,
the case through the imitation of legal processes through performance management within organ-
isations relying on ‘contracts’ without these being contracts in the narrow legal sense. These new
forms of contract management were predominantly developed by economists and political scien-
tists rather than lawyers, and have been used to supplant traditional, mainly administrative law,
ways of organising public and private–public relations. This development has, in many settings,
contributed to a strategic marginalisation of the law and the legal profession. In the traditional
‘law as a purpose’ setup the law was conceived of as an ex ante phenomenon. It was through
law the world was defined and interpreted. In the ‘law as an obstacle’ episteme this is different.
Administrative, managerial and political decisions are made and subsequently submitted to the
legal unit of the organisation in question for verification of their legality. A picture which also has
merged within contracting and contract theory and, thus, within private law. Traditionally,
contracts were considered the central object of negotiations in business transactions. Today,
contracting is mainly considered an ex post exercise conducted after agreement has been reached,
merely formalising the details.44
The ‘law as an obstacle’ episteme, thus, had a lot in common with the interwar version of the
‘law as a tool’ approach, while the normative objective was different. In the construction of the
welfare state, ‘law as a tool’ served the purpose of creating social and material rights, while in the
‘law as an obstacle’ episteme it became an instrument used to dismantle ‘publicness’ and its
replacement with ‘privateness’ on the basis of an ideal of the market as the optimal form for
the organisation of social exchanges. An objective which however rested on the paradox that
the desired de-politicising exercise itself was a profoundly political project. De facto ‘law as an
obstacle’ has often metamorphosed into an instrumentalisation of law, ie the use of legal

42
In this context, Critical Legal Studies (CLS) emerged as an intellectual countermovement to the countermovement.
Albeit with, at least in the shorter term, far less factual impact on society than the law and economics and the NPM and
NPG epistemes. For CLS see RM Unger, The Critical Legal Studies Movement (Verso 2015).
43
C Joerges, The Law in the Process of Constitutionalizing Europe, Working Paper EUI/Law 2002/04.
44
Eg DJ Schepker et al, ‘The Many Futures of Contracts: Moving beyond Structure and Safeguarding and Adaptation’
40 1 (2014) Journal of Management 193–225.

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European Law Open 767

instruments to safeguard particular and vested interests through investor protection, dismissal of
broader societal objectives of competition law, collective bargaining rights and so forth.

6. Law as reflexivity-initiation
The thinking behind the non-legal approach to ‘law as an obstacle’ resulted in a number of contra-
dictions and paradoxes. A crucial consequence of the NPM and NPG epistemes, for example, was
that public institutions were often transformed into organisations with independent operational
economic and strategic responsibility.45 Institutions have many – typically opposing – objectives
and considerations that they need to balance. In most national settings, the postal service, for
example, has traditionally been a business, an infrastructure and engaged in industrial and employ-
ment policy as well as regional and rural policy at the same time. However, from the narrow organ-
isational perspective that came with NPM and especially the NPG paradigm, the postal service was
in many settings increasingly reduced to its ‘operational task’ and ‘core business’. The same opti-
misation and efficiency approach is behind the many structural reforms from the 1990s onwards,
such as municipal mergers, closure or merger of courts, police districts, primary schools, local hospi-
tals and so on, which swept through many – particular north-western European – jurisdictions. The
intended and unintended externalities that public institutions such as colleges, schools, hospitals and
so on produce for society, including the local contexts in which they are – or were – located, were
however poorly captured by the narrow approach to public management and organisation which the
‘law as an obstacle’ stood for. This again might be a central cause for the increase in the structural
imbalance between cities and rural areas, centres of knowledge production and former industrial
heartlands which dominates many contemporary settings in the western world.
In legal discourse, there has been a weighty response to the ‘law as an obstacle’ approach since
the early 1980s. The most important contribution is the idea of ‘reflexive law’, ie an idea of law as a
mechanism of reflection. Rather than singular and hierarchical governance, as contained in the
idea of law as an objective, complex societies, according to the reflexive law approach, are forced to
develop a more indirect approach to governance and judicial intervention. Instead of substantial
governance, the law should limit itself to provide a framework for self-regulation within the
private sector, but also in relation to areas such as the mass media, research, health, education
and so on. In that sense, reflexive law can also be understood as the regulation of self-regulation.46
According to reflexive law, the various societal logics that drive these spheres should be allowed to
unfold on their own terms, while the law installs procedures that will increase the reflexivity
capacity and ultimately the adaptation capacity in relation to the externalities that different social
activities produces.47 The examples of such initiatives are numerous and range from requirements
for Environmental Impact Assessment (EIA) studies, requirements for ongoing (self-) evaluations
of public organisations to frameworks for reflection on Corporate Social Responsibility. Reflexive
law can thus be understood as a response to the lack of focus on the broader societal effects of
social, including public activities, inherent to the law and economics, New Public Management
and New Public Governance approaches.
Reflexive law is decisively societally oriented, in the sense that the unit of departure is society
and not the state - a departure which however is not based on the classical state/society distinction.
Rather the political system, ie the state, is considered one among many functionally delineated
systems of society on par with the economic, educational, religious, scientific etc. systems. Law
is, in this context, a functional system among others and the distinction law/environment, thereby,
becomes the core boundary, with ‘environment’ denoting the other non-legal systems in society.
45
N Brunsson and JP Olsen, The Reforming Organization: Making Sense of Administrative Change (Routledge 1993) 15ff.
G Teubner, ‘Substantive and Reflexive Elements in Modern Law’ 17 (2) (1983) Law & Society Review 239–86.
46
47
R Wiethölter, ‘Proceduralization of the Category of Law’ in C Joerges and DM Trubek (eds), Critical Legal Thought.
An American-German Debate (Nomos Verlag 1989) 501–10.

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768 Poul F. Kjaer

The forms of rights referred to are thus ‘systemic rights’ in a twofold manner: First of all, human
rights obligations are sought to be extended to all systemic structures, including economic actors
such as multinational companies, and not just states,48 and, secondly, through the inclusion of
‘non-humans’ such as animals and electronic agents.49 The notion of equality built into reflexive
law is, thus, one of ‘systemic equality’ with the epistemologies, rationalities and status of different
systems and their designated agents considered equal. The legal, ie normative ideal, is thus one of
law as the guarantor of functional differentiation through the simultaneous differentiation and
interconnection of functional systems. In this context, the idea of governance advanced is one
of systemic self-regulation on the basis of reflexive incorporation of the functional needs of other
systems, just as the central legal instrument becomes one of reflexivity enhancement through
proceduralisation, transparency and justification clauses.

7. The promise and potential of transformative law


One of the areas where self-regulation within a reflective framework went the furthest was the
financial sector. In hindsight, this did not go so well when taking the 2007 financial crisis into
account.50 The focus on inequality and geographical imbalances, currently dominating public
discourse, moreover indicates that the mechanisms of reflexive law, ie the law’s ability to create
a framework capable of taking account of the broader societal effects of both public and private
activities, are insufficient or, at least, that the manifold expectations placed on the law are not met.
The law – and society – thus faces a challenge. A return to a highly centralised Obrigkeitsstaat
operating within a static legal framework is not practically possible in relation to many of society’s
complex governance challenges and is probably also not considered normatively desirable.51 The
idea that ‘the state’ has or used to have the capability to exercise a comprehensive and substantial
form of control in all areas of society is, moreover, historically questionable. In addition, the
massive expansion of the public sector since the 1960s, which in most settings has continued ever
since, including in the structural liberal era from the 1980s onwards, means that the ‘state’ today is
an indefinable entity without an actual centre. By mobilising all its resources and using consider-
able sums of its economic, organisational and political capital, a government might be able to
establish itself as a singular centre for a short time. This might be the case in times of war or when
managing a pandemic. But this tends only to be possible in the face of a single problem constella-
tion and only for a relatively short period of time, just as the long-term consequences tend to be
financial overreach, ie indebtedness, and erosion of decisional capacity.52 An epistemological focus
on a single problem that also makes many other single problems disappear out of sight as long as it
goes on. Despite the 19th century ideal of the rational essentially Hegelian state, as expressed by the
idea of law as an objective, the state has never possessed an ‘epistemological universal view’ that
gave it the opportunity to observe and construct society as a whole in one particular moment.53 In
other words, the state has never been able to capture, interpret and create society in a total sense
48
G Teubner, ‘The Anonymous Matrix: Human Rights Violations by ‘Private’ Transnational Actors’ in M Escamilla and
M Saavedra (eds), Law and Justice in a Global Society (International Association for Philosophy of Law and Social Philosophy
2005) 547–62.
49
G Teubner, ‘Rights of Non-Humans? Electronic Agents and Animals as New Actors in Politics and Law’ 33 (4) (2006)
Journal of Law and Society 497–521.
50
See the contributions in: PF Kjaer, G Teubner and A Febbrajo (eds), The Financial Crisis in Constitutional Perspective: The
Dark Side of Functional Differentiation (Hart Publishing 2011).
51
For an exception in terms of normative desirability see W Streeck, Zwischen Globalismus und Demokratie: Politische
Ökonomie im ausgehenden Neoliberalismus (Suhrkmap Verlag 2021).
52
See FL Neumann, Behemoth. The Structure and Practice of National Socialism 1933–1944 (Ivan R. Dee [1944] 2009) 3ff.
53
For the Hegelian argument that the states does possess an epistemologically comprehensive view of society see;
M Loughlin, ‘What Is Constitutionalisation?’ in P Dobner and M Loughlin (eds), The Twilight of Constitutionalism?
(Oxford University Press 2010) 47–70.

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European Law Open 769

on the basis of its own perspective. Instead, legally constructed infrastructural power remains non-
substantive, providing a framing and moulding of social processes but without the capacity to
engage in the micro-management of those processes. The state cannot interpret a religious script,
decide on the truthfulness of a scientific argument, establish criteria for what counts as good art or
asses the benefits of a specific business transaction.
With the impossibility of going back in time, one might instead seek to look ahead exploring
the possibilities for a new approach potentially representing ‘a new “evolutionary” stage of law’.54
One possibility is what might be described as ‘transformative law’ understood both as a theoretical
reflection and as a concrete practice and that both in empirical and normative terms.55 Hence,
transformative law might in a first instance be approached as a sociological, ie factual, phenom-
enon through a sober assessment of the extent of its actual existence or its potential emergence. In
a second instance, one might choose to add a normative dimension assessing its validity. Here, the
ambition is more preliminary and less sweeping merely seeking to pinpoint basic touchstones of
what transformative law might entail in terms of core conceptual characteristics without this
necessarily implying a normative endorsement. As such, the following is an exercise meant to
invigorate our institutional imagination.56 This is combined with an assessment of what poten-
tially makes transformative law different from earlier types of law, especially the law as reflexivity-
initiation episteme, which it builds upon and with which has certain overlaps, while also going
beyond it in numerous ways.
Transformation is a compounded word. ‘Formation’ refers to a form and the ‘trans’ part to the
act where the form goes beyond its existing form, ie transformation means to ‘change form’. The
objective of transformative law is thus to change forms. Something has a form and the intention is
it must have a different form. Here, three sub-elements can be differentiated in a substantial, social
and temporal sense:
In a substantial sense, the focus on form means, firstly, an increased reflection on the law’s core
task as a simultaneous differentiation and interconnection mechanism. In addition to maintaining
norms over time, it is in the simultaneous differentiation and interconnection of different social
processes that the social function of law can be found. From this perspective, it is thus central that
legislative initiatives and other law generating insights systematically and strategically seek to
incorporate this function in the way in which legal principles, norms and other legal instruments
are constructed. Secondly, the focus on form implies that law has what might be called a ‘soft
constituent effect’ vis-à-vis social processes, including processes with political economy relevance,
as reflected in the forms of competition, contract, corporation and property among others.57 Mass
media, health, science and economic activities are social processes in their own right that repro-
duce themselves on the basis of their own logics, but it is through concurrence with a legal form
that they become institutionalised. Such institutionalisation can be understood as an ‘epistemo-
logical shaping effect’, in the sense that a social exchange of goods only becomes an economic
transaction the moment it is categorised as a contract-based exchange, just as a posting on social
media is first categorised as a mass media phenomenon within a legally defined understanding of
what a mass media is. The law, in other words, categorises social phenomena and acts in that sense
as constitutive by giving shape to social processes. Or, in other words: the law gives loosely coupled
social elements a tighter form.58 However, this process goes both ways. The law is constantly
forced to respond to changes in the substantial processes it is oriented towards, and typically lags
behind in its shaping operations. This is the case, for example, when mass media legislation
54
G Teubner, ‘Substantive and Reflexive Elements in Modern Law’ 17 (2) (1983) Law & Society Review 239–86, 242.
55
For a focus on transformative law in relation to global problems see; PF Kjaer, ‘The Law of Political Economy as
Transformative Law: A New Approach to the Concept and Function of Law’ 2 (1) 2021 Global Perspectives 1–17.
56
RM Unger, ‘Legal Analysis as Institutional Imagination’ 59 (1) (1996) Modern Law Review 1–23.
57
For a very illustrative account in relation to property, see the contribution of Jean-Philippe Robé to this special issue.
58
F Heider, Ding und Medium. Herausgegeben und mit einem Vorwort versehen von Dirk Baecker (Kulturverlag Kadmos
[1926] 2005).

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770 Poul F. Kjaer

appears outdated in relation to the new reality created by the emergence and rapid evolution of
social media, or when new forms of treatment make existing health guidelines outdated. The
consequence is a constant ‘crisis of regulation’, since many of the ‘crises’, ‘problems’ and ‘lack
of consensus’ that modern societies are characterised by can be attributed to such time gaps, where
social processes have changed while the tighter form, which the law provides, has not followed
along and, therefore, no longer captures these processes in full. A time gap which the shift from an
ex ante to an ex post perspective on the legal systems position in society, as driven forward by the
NPM and NPG epistemes, reinforces by consistently seeing the relevance of the law as a secondary
post-rationalisation, rather than as the spearhead defining a given problem in the first place.
However, a return to a purely ex ante approach to justice does not seem realistic and, therefore,
opens up for the question of how a higher degree of societal stabilisation can then be achieved.
A middle ground could be a ‘co-constitutive approach’ where the simultaneity between legal and
non-judicial processes is strengthened, and the formative function of law becomes more dynamic.
However, a complete overlap will not be achievable and will not be meaningful since the central
task of law, in addition to the differentiation and reconnection function, is precisely to stabilise
expectations over time through the maintenance of norms. A total overlap in time will therefore
also mean a cessation of the distinction between the legal and the non-legal as they would become
identical.59 The temporal friction is necessary to maintain the functional and normative integrity
of the law and the challenge is, therefore, to make the temporal friction between the legal and the
non-legal into a constructive and creative resource rather than a problem. So while society might
‘speed up’ due to increased acceleration60 and temporalisation61 the law will also have to speed up,
while never going as fast as the rest of society.62 Hence the law is, for structural reasons, bound to
become more ‘transformative’. It follows that the notion of law’s constitutive character for
economy as presently advanced at Yale is both falling too short and going too far.63 Falling
too short, because the form giving function of law is not particular to the economy but rather
can be observed in relation to a far broader host of social processes, including, as previously
highlighted, political processes. However, it is also going too far, because law only produces a
‘soft constituent effect’ for non-legal social processes. When a social exchange is given a
contractual form, it allows for that particular social exchange to be denoted an economic
exchange. In this sense, one might say law constitutes ‘the economic’ but only as a secondary
co-constitutive exercise, as it might reinforce and condense but not create such exchanges.
The dual function as simultaneous differentiator and interconnector might be considered as
based on connectivity norms. The concept of connectivity norms was originally developed in
order to capture the role of law in the separation, transmission, and incorporation of components
of meaning from one context to another in a globalised world, as for example undertaken through
global value chains spanning several legally defined societal contexts and jurisdictions.64 However,
in an additional variant connectivity norms might also be considered as instruments aimed at
horizontal separation, transmission, and incorporation of components of meaning between
systemically organised processes of, for example, an economic, political, religious or scientific
nature. This is, for example, expressed in the extraction, transfer and incorporation of economic

59
For elements of a theory see; P Kjaer ‘Systems in Context: On the Outcome of the Habermas/Luhmann-Debate’
September (2006) Ancilla Iuris 66–77; PF Kjaer, ‘Law of the Worlds – Towards an Inter-Systemic Theory’ S Keller,
S Wipraechtiger (Hrsg.), Recht zwischen Dogmatik und Theorie. Marc Amstutz zum 50. Geburtstag (Dike Verlag 2012)
159–75; Kjaer, ‘How to Study Worlds: Or Why One Should (Not) Care about Methodology’ 208–22.
60
H Rosa, Beschleunigung. Die Veränderung der Zeitstrukturen in der Moderne (Suhrkamp 2005).
61
N Luhmann, Die Gesellschaft der Gesellschaft (Suhrkamp Verlag 1997) 997ff.
62
PF Kjaer, Constitutionalism in the Global Realm: A Sociological Approach (Routledge 2014) 104ff.
63
JS Purdy et al, ‘Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis’ 129 (2020)
Yale Law Journal 1784–835.
64
PF Kjaer, ‘Constitutionalizing Connectivity: The Constitutional Grid of World Society’ 45 (S1) (2018) Journal of Law and
Society 114–34, 126.

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European Law Open 771

capital raised through tax law into the political system, or the extraction, transfer and incorpo-
ration of components of scientific knowledge into the economic system through their conversion
into technologies with the help of patent law.
In the social sense, the law plays a crucial role in facilitating social exchanges, such as the
purchases of goods and services, or conversely, preventing social exchanges such as the use of
violence or the spread of defamatory statements on social media. The social dimension is also
crucial for reflexive law’s attempt to increase the ability of social processes to include the societal
effects of their activities in their organisational forms, decision-making processes and values.
However, this perspective can be broadened through an understanding of law as ‘infrastructural
law’, understood as the grid and the channels through which administrative, economic, mass
media and other social processes are conducted, and that in two ways.
First, through a conceptual detachment of the concept of public law from the concept of the
state. As already indicated, the ‘state’ or the ‘public sector’ is an indefinable quantity that has
always been ‘fluid’ acting as one legal form provided to political power, among others. The
‘fluidity’ is, both historically and today, expressed in the active role private actors have played
in the production of, for example, welfare services and the construction and operation of infra-
structure.65 That is the case of private water supply and railways, outsourced elderly care, of
private hospitals and Google’s search engine. In addition, there are more sources of public law
than just state law. EU law, for example, produces legal norms of a public law nature with direct
legal effect. State law and public law are therefore not identical as public law goes beyond formal
state institutions. A concept of ‘legally constituted public power’ provides a broader, yet more
targeted and precise approach, deployable in a wide range of local, national and transnational
settings, as well as in relation to formally public and to formally private institutions. Hence, ‘legally
constituted public power’ exists wherever power is abstracted, ie de-personalised, and generalised
through legal means, making it distinct from atomistic and informal privatistic power.66 Privatistic
power is, in this sense, the broader category, as such power is intrinsic to all social processes and
exchanges, while legally constituted public power is a specific type of power that might or might
not be unfolded in a given setting. In contrast to Hobbesian and Hegelian approaches, the epis-
temological point of departure is therefore not public power, described as state power by Hobbes
and Hegel (as visible in their understanding of public power as a holistic frame encapsulating
private power). Rather, privatistic power is manifest throughout society, with legally constituted
public power appearing as islands in this ocean of private power. In stricter legal terms, public
power might therefore be observed wherever the norms and standards of ‘public interest’, and
the areas that fall under administrative law and related areas of law, are applied. For example,
private providers of public services or privately owned ‘critical infrastructure’, regardless of
whether public law originates from a national capital or from Brussels, Strasbourg or elsewhere,
just as both public and private international organisations might be included. The easiest, and
perhaps only way to define ‘the public’ in legal terms will, therefore, be that the public ‘is’ where
administrative law and related legal fields apply. As expressed in the concepts of ‘global adminis-
trative law’67 and ‘private administrative law’68 such law is moreover present and observable in a
multitude of settings throughout world society. The consequence of this optic is that Google Inc.,
for example, should not simply be observed as an organisation with a one-dimensional obligation

65
G Thompson, ‘The Constitutionalisation of Everyday Life?’ in E Hartmann and PF Kjaer (eds), The Evolution of
Intermediary Institutions in Europe From Corporatism to Governance (Palgrave Macmillan 2015) 177–97.
66
PF Kjaer, ‘Why Justification? The Structure of Public Power in Transnational Contexts’ 8 (1) (2017) Transnational Legal
Theory 8–21.
67
S Cassese, ‘Administrative Law without the State? The Challenge of Global Regulation’ 37 (2005) New York University
Journal of International Law and Politics 663–94; B Kingsbury et al, ‘The Emergence of Global Administrative Law’ 68 (2005)
Law and Contemporary Problems 15–62.
68
R Vallejo, ‘After Governance? The Idea of a Private Administrative Law’ in PF Kjaer (ed), The Law of Political Economy:
Transformation in the Function of Law (Cambridge University Press 2020) 320–47.

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772 Poul F. Kjaer

to produce shareholder value. Rather Google – like the postal service in the old days – can be
understood and regulated as a multi-faceted institution with a number of – potentially –
conflicting societal obligations that can be identified and given form through regulation and which
it will be Google’s task to balance on the basis of a concept of stakeholder value. The task of the law
is, in other words, to transform Google from an organisation to an institution on the basis of an
understanding of legally constituted public power as an infrastructure that spans the distinction
between the private and the public.69
Second, through a spatial turn in law. The legal theoretical focus in the last four decades has, as
expressed in reflexive law, been on the proceduralisation of the law, ie on the time dimension of
law. Today, however, there is an increasing focus on ‘the cohesiveness of society’, as expressed in
discourses on inequality and geographical imbalances. Social spaces, symbolically defined through
geographical markers, thereby become a central dimension in the projection surface on which law
has its cognitive focus. Nationwide coverage obligation for telecommunications and electricity
providers are classic examples, but can, in principle, be unfolded in a manifold of cases. For
example, in relation to welfare services as a legal obligation to ensure a maximum distance from
residence to nearest hospital and general practitioner, and in relation to a maximum distance to
nearest educational institution in order to achieve a transformation of spatial relations in rural
areas. The spatial dimension might, therefore, also be considered as based on a concept of coher-
ence norms, ie norms that, from a ‘traditional’ sociological perspective, tend to be seen as ‘instru-
ments of collectivity’. Norms which are oriented towards the establishment of coherence within a
group, for example a legally defined corpus of citizens, through the prescription of specific actions
considered desirable for the members of the group, with the aim of transposing these the norms in
question into the future.70
In a temporal sense, the intention of proceduralisation in reflexive law was a way to deal with
increasing societal complexity by focusing on the development of procedures for decision-making
processes without entering into the substance against which the decision-making processes were
oriented. The law should thereby become more agile, adaptive and dynamic and better at
responding to societal change. While the proceduralisation mindset has many advantages, there
is a basis for expanding the temporal horizon through the development of a legal concept of
sustainability, in both individualised and societal sense, that can serve as a unifying optic for a
broad host of societal processes and problem constellations, such as environmental, social, health
and economic issues. At the individual level, sustainability implies a focus on ‘the whole life’, ie on
a person’s total life expectancy. Labour market affiliation and conditions will thus have to be seen
in a perspective that implies maintaining a certain minimum standard of living for life, with the
implications it has for pension schemes. Occupational, health-related illnesses, such as stress, will
have to be considered on their long-term implications throughout life and the value of education
will have to be assessed on the basis of the long-term effects, rather than on the immediate
employment rate and income of recent graduates.
From a societal point of view, sustainability is closely linked to the generational perspective, the
implications of current activities for future generations. The generational perspective is already
central to both fiscal and environmental policy, where the long-term sustainability of contempo-
rary dispositions has been a theme for a long time. The transformative potential of law in this
context lies in its ability to provide a framework for contemporary action on the basis of a future
perspective. Albeit not very successfully, that is for example the motivation behind the EU’s
Stability and Growth Pact for fiscal policy.71 The statutory phasing out of internal combustion

69
PF Kjaer, ‘From the Private to the Public to the Private? Historicizing the Evolution of Public and Private Authority’ 25 (1)
(2018) Indiana Journal of Global Legal Studies 13–36.
70
Kjaer (n 64) 114–34, 126.
71
Kjaer (n 27) ‘European Crises of Legally-Constituted Public Power: From the “Law of Corporatism” to the “Law of
Governance”’ 417–30, 427f.

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European Law Open 773

engines in the EU by 2035 within climate law might also be considered as based on a notion of
sustainability embedded in a transformative law approach.72 The ongoing legislative process
concerning a directive on due diligence might be understood in a similar way.73 The law can thus
set goals for the future that serve as a guideline for present dispositions and thus initiate a
transformative process. An objective function that the law is potentially better at fulfilling than
the political system which works with a shorter time horizon governed by ‘cases’, opinion polls
and the next election campaign, whereas the law can relate relatively indifferently to the short-
term political and economic costs of long-term dispositions. Transformative law in this sense
might provide principles of selection in the course of societal evolution. The tri-partite distinction
between variation, selection and retention is at the core of evolutionary understandings of society.
From moment to moment, a multitude of social processes unfold through selection of the next
operation, ie one payment produces another payment and one administrative decision feeds into
other administrative decisions, while societal complexity implies that there always is more than
one option available. Not taking a decision is, for example, also a decision. Hence, the need for
selection criteria for choosing between one or the other payment, or between this or that decision.
The temporal perspective might be understood as based on a concept of possibility norms.
Possibility norms introduce a distinction through a distance to the factually existing social reality
as perceived in a given social context, by introducing a contra-factual perspective. As such, possi-
bility norms are instruments through which possible alternatives to the given social reality are
unfolded, thereby marking possible futures and accentuating the openness, rather than the reti-
cence, of the future.74 The aspirational texts and statements based on an ever-expanding list of
rights characterising many contemporary constitutions, as well as the formulation of the UN
Sustainable Development Goals, are typical examples.
Going into more detail and distilling its content, ten core characteristics of transformative law
and its partial overlap with previous types of law, especially reflexive law, can be highlighted as
follows.

A. Societal unit
The ‘law as purpose’ approach had the idea of the nation state and its related Volksgeist as its core
societal unit. ‘Law as a tool’ tended in its initial interwar setup to focus on particular social groups,
such an ethnic group, a profession, a social class or a ‘race’, as the central societal unit often
combined with the claim that the particular group in question had a particular standing making
it the core of society. The universal post-1945 Western European version of ‘law as a tool’ was,
moreover, closely linked to a correspondence between state and society or a ‘societal state’ within a
neo-corporatist nation state framework, thereby making this extended form of statehood the core
societal unit.75 This form of statehood remained intrinsically linked to transnational constitutive
processes, to a degree that allows us to talk about a transnational constitution of the extended
nation states.76 The transnational constitution of nation states, moreover, played an essential role
in the ‘law as an obstacle’ approach. Starting with the 1976 IMF bailout of the United Kingdom,
international organisations acted as the avant-garde in the introduction of structural liberalist
reforms of the kind associated with the ‘law as an obstacle’ approach.77 Nonetheless, ‘law as
72
GSM Pratti, ‘Bad Moon Rising: the Green Deals in the Globalization Era’ 1 (2021) Rivista quadrimestrale di diritto
dell’ambiente 177–96.
73
See the contribution of Marija Bartl in this issue.
74
Kjaer (n 64) 114–34, 126.
75
PC Schmitter, ‘Still the Century of Corporatism?’ 36 (1) (1974) The Review of Politics 85–131.
76
JE Fossum and AJ Menéndez, The Constitution’s Gift: A Constitutional Theory for a Democratic European Union
(Rowman & Littlefield 2011).
77
D Wass, Decline to Fall: The Making of British Macro-economic Policy and the 1976 IMF Crisis (Oxford University Press
2008).

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774 Poul F. Kjaer

an obstacle’ observed the world through a one dimensional economic prism and, as such, only saw
economic entities and agents acting as market participants, or entities and agents mimicking
economic entities and actors. The market was in other words conceived of as the central societal
unit. Reflexive law is global law unfolding within world society.78 While, in principle, being global
in nature, globality is however not the primary concern of reflexive law. Rather, the central focus is
on functionally delineated systems and regimes. It is the internal dynamics and rationalities of
these systems and regimes that are conceived of as the drivers of societal evolution, just as the
systemic boundaries are the central conflict lines of society, thereby making functional delineated
systems and regimes the central societal units. Transformative law, however, turns this relation-
ship between world society and systems and regimes upside down. The epistemological point of
departure of reflexive law is functional systems and regimes. It is through these systems and
regimes that the world is observed. Transformative law, on the other hand, departs from ‘the
world’ as especially observable in relation to discourses on environmental law, especially climate
law, or what might be termed antrophogenic law. However, this world, paradoxically, consists of
many worlds, as for example expressed in a strive to recognise ‘silent epistemologies’ operating
outside euro-centric and modernist social praxes. The number of organising principles of such
worlds are, therefore, quite broad ranging from functional to segmentary and stratificatory differ-
entiation.79 Irrespective of their organising principle, such worlds can however be understood as
constituted in a dual sense. Firstly, a ‘world’ is a social phenomena consisting of an ‘inner world’
and a horizon,80 or a social system and its context.81 In addition, ‘worlds’ are ‘double worlds’ in the
sense that they simultaneously are factually existing functional worlds and contra-factually
existing normative worlds. The dialectical tension between these two world dimensions are,
furthermore, considered the essential driving force of social evolution and hence of societal dyna-
mism.82 In this context, a central, third function, of law emerges through a multi-dimensional
conflicts of law, or an ‘in-between worlds’ law,83 aimed at establishing compatibility and the possi-
bility of transfers between such worlds. ‘Global law’ can, in this context, be understood as a specific
inter-contextual and non-territorial subspecies of law aimed facilitating the extraction, transfer
and incorporation of components of meaning from one world to another.84

B. Form of rights
In ‘law as purpose’ approaches individual rights between formally equal subjects situated in ‘civi-
lised’ nation state settings, thereby, in most instances, excluding colonial settings, were at the
centre. Collective rights, in contrast, were, as mentioned, at the centre of many ‘law as a tool’
approaches emphasising the rights of particularistic groups. After 1945 this notion of rights,
however, changed with the move to universal across the board welfare regimes. In the ‘law as
an obstacle’ approach the primary bearer of rights was the economic actor, such as the employee
or service provider in EU internal market law. Multinational companies were, in this context,
78
G Teubner, ‘Global Bukowina: Legal Pluralism in the World-Society’ in G Teubner (ed), Global Law without a State
(Dartsmouth 1996) 3–28.
79
N Luhmann, Die Gesellschaft der Gesellschaft (Suhrkamp 1997) 332ff.
80
MA Belousov, ‘On the Problem of the World in Husserl’s Phenomenology’ 54 (1) (2016) Russian Studies in Philosophy
20–34; E Husserl, Lebenswelt. Auslegungen der vorgegebenen Welt und ihrer Konstitution. Texte aus dem Nachlass (1916–1937)
Hrsg. Von Rochus Sowa (Springer 2008) 246–56; L Landgrebe, ‘The World as a Phenomenological Problem’ 1 (1) (1940)
Philosophy and Phenomenological Research 38–58.
81
P Kjaer, ‘Systems in Context: On the Outcome of the Habermas/Luhmann-debate’ September (2006) Ancilla Iuris 66–77.
82
See in particular H Brunkhorst, Critical Theory of Legal Revolutions: Evolutionary Perspectives (Bloomsbury 2014).
83
M Amstutz, ‘In-Between Worlds: Marleasing and the Emergence of Interlegality in Legal Reasoning’ 11 (6) (2005)
European Law Journal 766–84.
84
Such extraction, transfer and incorporation of components of meaning between different worlds is however intimately
connected with asymmetric power structures and substantial divergences in discourse defining capabilities. For more on this
see; Kjaer (n 8) 302–18.

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increasingly able to stage themselves as bearers of rights as well.85 The social category of the
consumer, moreover, became the normative focus point.86 In ‘law as reflexivity-initiation’, the
‘systemic agent’, linked to the social roles of different systems, such as ‘the believer’, ‘the citizen’
and ‘the employee’, is the bearer of rights, on the basis of a notion of strict systemic equality.
Systemic agents do not necessarily have to be designated as ‘humans’. Any agent, also
animals and electronic agents, fulfilling a systemic role might take this role.87 Transformative
law could go a step further, through a multi-species approach, also including plants, fungi,
bacteria, or even viruses in addition to animals, humans and electronic agents.88 Any ‘form of
life’ thereby, in principle, becomes bearer of rights, with the obligation to protect its integrity
enshrined in law. This perspective links up to a ‘world studies approach’, allowing for a broader
range of categories of social entities when compared to the system theoretical focus on functionally
delineated systems. In addition, it implies a gradualisation of the distinction between social
systems and the psychic systems associated with humans, as well as between social systems
and biological systems of animals, plants, and so forth, that are at the center of systems theoretical
inspired approaches.

C. Notion of equality
‘Law as purpose’ relied on a strict formalistic idea of equality of legal subjects. ‘Law as a tool’, on
the other hand, foregrounded particular groups, either to make up for perceived disadvantages or
because they were seen as avant-garde structures of society. ‘Law as an obstacle’ involved a return
to a neo-formalistic setup, emphasising formal equality, while also limiting it through a fore-
grounding of economic actors. ‘Law as reflexivity-initiation’, on the other hand, focused on
the equality of ‘systemic actors’ linked to social roles, such ‘the consumer’ in the economy,
‘the voter’ in the political system, the ‘legal subject’ in the legal system, and so forth.
Transformative law, foregrounds the generational aspect. Linked to the notion of sustainability
inter-generational equality becomes the central notion of equality materialised through mainte-
nance and future access to economic, environmental, health and social resources. This perspective
is derived from broader societal concerns, such as, for example, whether the standard of living of
previous generations can be maintained, the degree of depletion of natural resources and its
impact on future generations. These are questions that, justified or not, are dominating the
broader public discourse these years in certain parts of the western world. It is, moreover,
combined with the aim to maintain the diversity of non-social and non-human forms of life
as an objective in itself and the future maintenance of current forms of life and even the obligation
to engage in de-extinction, the recreation of forms of life that have become extinct because of
societal activities.89

D. Legal ideal
As reflected in the term ‘law as purpose’, classical legal scholars regarded the perfect legal regula-
tion of social life as a purpose in itself. The ideal of law was a perfectly coherent system based on
deduction organising a perfectly legally regulated world. ‘Law as a tool’ oscillated between the
85
S Steininger and J von Bernstorff, ‘Who Turned Multinational Corporations into Bearers of Human Rights? On the
Creation of Corporate ‘Human’ Rights in International Law’ in I Venzke and KJ Heller (eds), Contingency in
International Law. On the Possibility of Different Legal Histories (Oxford University Press 2021) 281–96.
86
N Olsen, The Sovereign Consumer: A New Intellectual History of Neoliberalism (Palgrave Macmillan 2018).
87
G Teubner, ‘Rights of Non-humans? Electronic Agents and Animals as New Actors in Politics and Law’ 33 (4) (2006)
Journal of Law and Society 497–521.
88
SE Kirksey and S Helmreich, ‘The Emergence of Multispecies Ethnography’ 25 (4) (2010) Cultural Anthropology 545–76.
89
NF Carlin et al, ‘How to Permit Your Mammoth: Some Legal Implications of “De-Extinction”’ 33 (3) 2014 Stanford
Environmental Law Journal 3–57.

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776 Poul F. Kjaer

vision of a world unified through political acts without the need to rely on legal means, ie the ideal
of law being the absence of law, and a vision of the world where law was merely a tool for political
action, with law leaving no independent imprint on the world. ‘Law as an obstacle’ followed along
with the ideal of law as marked by its absence. In the ideal world, the market would enable an
optimal form of social exchanges without the help of legal instruments and if, as a secondary
option, law was needed, the ideal would be the unfolding of law on the basis of economic prin-
ciples and with the help of economic tools as expressed in the turn to ‘law and economics’. ‘Law as
reflexivity-initiation’ saw the legal ideal in the maintenance of a functionally delineated society.
Transformative law sees the legal ideal in the epistemological visualisation and invigoration of
‘worlds’. This is, for example, highlighted in a broad spectrum of post-colonial legal discourse,
where the law is seen as an instrument potentially able to assist in breaking the muteness of
non-western forms of social organisation, through acts of recognition and by providing platforms,
visualising and privileging such forms of communication. In a similar vein, the ‘soft constituent
effect’ of law, constituting social processes by transforming loose couplings into tighter couplings
also has an epistemologically visualising and invigorating effect. Transformative law might, there-
fore, also be understood as ‘platforming law’ and thus also potentially as ‘deplatforming law’,
aimed at foregrounding some worlds and de-emphasising others.

E. Normative idea
‘Law as purpose’ was classical modernist law aimed at driving forward the wheels of history on the
basis of the full vocabulary of enlightenment and progress. ‘Law as a tool’ represented a radical-
isation of this idea through the introduction of the idea that revolutionary avant-gardes and other
political groupings could speed up and even direct the course of history, with the aim of arriving at
a nirvana style state of affairs in a not-too-distant future. ‘Law as an obstacle’, on the other hand,
was based on a vision of society as a market characterised by perfect competition and in perfect
equilibrium, a state where supply equals demand. ‘Law as reflexivity-initiation’ had as its norma-
tive ideal a society where the multitude of systemic rationalities are unfolded to their fullest,
including through a potential complete inclusion of all humans via corresponding social roles
and where, with the help of law, function systems take adequate account of the externalities they
produces via-a-vis each other. A society which, due to its functional pluralism, was considered
inherently anti-totalitarian. Transformative law has a sustainable society as its ideal, ie a society
capable of supporting processes continuously over time in a manner which does not reduce the
life-prospects of later generations. The ultimate ideal is, thus, a circular society where all biological,
physical and social resources utilised undergo a reprocessing that allows for their reuse, to the
extent that it does not reduce or deplete the resources available in the future. This perspective
has, furthermore, been linked to issues of strategic autonomy and resilience, as for example is
the case of plans for energy transitions, such the EU Green Deal.90

F. Governance idea
‘Law as purpose’ in the Savigny tradition had private law as its primary focus point, understanding
it as an expression of a societal Volksgeist. Hence, the idea of governance was the nation state but
with the state guided by the nation rather than the nation being guided by the state. ‘Law as a tool’
had corporatism and, after 1945, neo-corporatism as its core idea of governance, with classical
corporatism having a focus on societal rather than state corporatism. ‘Law as an obstacle’
approaches had the spontaneous order of the market combined with a minimal state, safeguarding
the autonomy of the market as its core governance idea. ‘Law as reflexivity-initiation’ had, as
mentioned, the regulation of self-regulation as the primary lens through which the question of
90
Pratti (n 72) 177–96.

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European Law Open 777

governance was approached. In contrast, transformative law has its core focus on inter-contextual
and inter-legal arrangements aimed at handling the recognition, visibility and accommodation of
a multitude of different worlds within the singular world of the Anthropocene.91 That is for
example reflected in the focus on the status of indigenous peoples, and the compatibility of their
modes of organising with legal orders of settler origin, or through highlighting the connectivity
and synchronisation of multiple societal contexts through global value chains.

G. Legal core
As already highlighted and meticulously pointed out by Duncan Kennedy, private law was the
legal core of ‘law as purpose’ approaches, while ‘social law’ took centre stage in ‘law as a tool’
approaches. ‘Economic law’ in national and international formats, combined with a semantic
of constitutionalisation, was the central focus point of ‘law as an obstacle’ approaches. ‘Law as
reflexivity-initiation’ is the quintessential societal law derived from social norms making it a kind
of social law though without the focus on a particular social group. The move to transformative
law, on the other hand, implies foregrounding ‘sustainability law’, most notably environmental
law, but also forms of economic law encompassing broader socio-economic concerns related
to societal coherence and (in-)equality. Transformative law might, therefore, also be understood
as ‘woke law’, in the sense that it seeks to bring attention and awareness to a diverse set of issues,
ranging from animal rights to gender and racial discrimination. As already indicated, an expanded
version of administrative law, transcending the private/public divide and the triangular
local/national/transnational distinction, moreover becomes the core tool. This is the case as
administrative law, in many ways, acts as the skeleton providing legally constituted, abstracted
and generalised public power with institutional repositories, allowing it to address issues of soci-
etal coherence due to its harmonising and synchronising effects.

H. Boundary
‘Law as purpose’ defined itself through its positivist boundary vis-à-vis morality and with that
political and religious influence. ‘Law as a tool’ had the relation of law to the wider society as
its contested boundary, with law serving the purpose of society and not the state. ‘Law as an
obstacle’ had the insulation of economic processes from politics at its centre and as such had
the law/politics distinction as its central line of contestation. ‘Law as reflexivity-initiation’ relied
on the law/environment distinction as its central boundary. Each system has an environment it
needs to observe and internally process. Transformative law, instead, addresses the relation
between law and the multitude of worlds. Worlds which are constituted through law, but also
are where law is derived from.

I. Legal instrument
‘Law as purpose’ had codes of law, in particular civil codes, as their preferred legal instrument.
As meticulously analysed by Franz Neumann, ‘special legislation’, purpose-driven legal instru-
ments, was at the centre of ‘law as a tool’ approaches.92 ‘Law as an obstacle’, on the other hand,
invoked constitutionalising semantics with the aim of insulating certain social, most notably,
economic activities from external interference. ‘Law as reflexivity-initiation’ relied on procedural
frameworks aimed at fostering self-regulation. Transformative law, by contrast, is ‘future law’
based on transformative targets to be achieved at a given point out in the future, as for example
91
Ibid.
See especially FL Neumann, ‘The Change in the Function of Law in Modern Society’ in WE Scheuerman (ed)
92

The Rule of Law under Siege. Selected Essays of Franz L. Neumann & Otto Kirchheimer (University of California Press
[1937] 1996) 101–41.

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778 Poul F. Kjaer

reflected in the Paris Agreement on Climate Change, the EU Green Deal and energy transition
legislation in general.

J. Legal agency
‘Law as purpose’ has the law professor as its proclaimed hero. The legal scholar engaging in the
production of the grand civil codes of the 19th century. ‘Law as a tool’ had the legal sociologist
going back not only to Émile Durkheim and Max Weber but also to Rudolf von Jhering and Eugen
Ehrlich, as their original heroes, followed up by a broad range of labour lawyers and other protag-
onists of social law actively engaged in labour union struggles. ‘Law as an obstacle’ had the judge
and litigants at the centre. ‘Law as reflexivity-initiation’ tuned to extra-legal drivers, NGO’s and
other social movements driving change through scandalisation and media attention.
Transformative law adds to this the ‘expert’ as a central driver of legal change. The
Intergovernmental Panel on Climate Change and pandemic experts are here a case in point.
Hence, transformative law is ‘scientific law’ with a strong reliance on cognitive rather than norma-
tive processes of knowledge creation. This is also reflected in issues such as environmental, socio-
economic and technology related issues, and the call for knowledge-based solutions. But even
more so in the very idea of transformation, ie of change, as cognitive knowledge is knowledge
which is systematically structured along the principles guiding scientific knowledge generation,
meaning knowledge which is under current scrutiny and in constant flux with ‘old knowledge’
continuously replaced with ‘new knowledge’.93

8. Conclusion
Law has always been changing. Historically, law has been understood as an objective, as a tool, as
an obstacle and as a mechanism of reflection. Especially after the NPM and NPG revolutions, the
law has however been strategically marginalised through a dilution of its norm-setting function in
society. The consequence is that fertile ground has emerged for a wide range of societal problems
to keep growing, just as the ongoing de-centering of the western-centric world has created a new
problem constellation in society and, thus, a demand for new types of norms in both a formal and
substantial sense. It is on this backdrop that the possible development of a concept and praxis of
transformative law, focused on law as a form-giving exercise, is emerging. A legal concept of trans-
formative law that has both a substantial, a social and a time dimension, extending beyond the
pure temporal focus which is the main element in reflective law.
Transformative law is however a potentiality rather than a reality.94 Structurally, its emergence
is driven forward through increased acceleration and temporalisation of society. The current state
is, however, one of a multitude of ongoing legal developments in scholarship, praxis and legisla-
tion providing fragments that might or might not amalgamate into a fundamental new episteme of
transformative law. Were it to obtain dominance, it would potentially provide the foundation for a
new époque of legal evolution, markedly different than the types of law dominant in previous
époques. The chances of this happening are wide open and dependent on the combination of
many factors of both a legal and extra-legal nature and is, as such, contingent. It can become
the defining episteme of law for decades to come or just remain a short semantic blip that will
have disappeared from the radar in a few years from now. The determining factors are likely to be
the structural conditions of the 21st century world society, as well as the dominating perception of
pressing problems and the ensuing flux of problems, as issues currently thought to be high on the
agenda for decades to come potentially will be seen in a different light down the road. The relative
93
N Luhmann, Rechtssoziologie (Verlag für Sozialwissenschaften [1972] 2008) 80ff.
For the concept of potentiality see; N Åkerstrøm Andersen and J Grønbæk Pors, ‘Transformation and Potentialization:
94

How to Extend the Present and Produce Possibilities?’ (Published ahead of print 11 August 2022, Kybernetes).

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Table 1. The five types of law

Law as
Law as Reflexivity-
Purpose Law as a Tool Law as an Obstacle initiation’ Transformative Law

Societal unit Nations Social groups Markets Function systems World society
Form of rights Individual Collective Rights of economic Rights of Multi-species rights
rights rights actors systemic agents
Notion of Formal Assymmetric Formal equality of Formal equality Symmetric equality
equality equality equality economics actors of systemic between generations
between between actors
individuals groups
Legal ideal Coherent Unrestrained Frictionless market Upholding Epistemological
legal political action exchanges functional visualisation and
regulation of differentiation invigoration of
society ‘worlds’
Normative idea Enlightenment Progress Market equilibrium Complete Sustainability
through perfect unfolding of
competition systemic
rationalities
Governance Nation states (Neo-) Spontanous market Regulation of Inter-legality
idea corporatism order self-regulation
Legal core Private law Social law Economic law Societal law Administrative law
Boundary Law and Law and Law and politics Law and other Law and worlds
morality society social systems
Legal Civil codes Special Constitutionalisation Procedualisation Target based ’future
instrument legislation law’

Legal agency The law The legal Judges and litigants Social Experts
professor sociologist movements and
NGOs

location and concentration of power, resources and knowledge will also be central. As pointed out
by Duncan Kennedy, classical legal thought mainly had a German origin. ‘Law as a tool’ concep-
tions were heavily French inspired and ‘law as an obstacle’ had close links to the US context. But
where will transformative law come from? In its self-description, it is likely to see itself as truly
global with no enshrined bias vis-à-vis different cultures, languages or regions of the world. In
praxis that is, however, likely to be different. EU law and the scholarship surrounding it is an
obvious contender in the battle for occupying the driver’s seat but there will be other competing
variants as well. No matter which variant obtains dominance, blind angles will be present.95
The normative desirability of transformative law is also open for contestation. This largely will
depend on the actual form it will take in the concrete contextual settings where it might manifest
itself. ‘Law as a tool’ was a cross-over movement which manifested itself in widely different ideo-
logical and institutional practises ranging from anarchist to extreme totalitarian over progressive
socialist to social democratic appearances. In a similar way, transformative law might become a
vehicle for both activist, communitarian, fundamentalist, pluralist, totalitarian and, through the
attempts of re-engineering past developments, also novel forms of reactionary activity. In a similar
vein, and just as ‘law as a tool’, its different strands might subscribe to democracy and democratic
ideals or not, just as its degree of alignment with classical liberal rule of law ideals will be a central

A good example of the potential of EU law in this regard is the European Commission’s ‘Proposal for a Directive on
95

Sustainable Due Diligence’ from 23 February 2022. For more on this see the contribution of Marija Bartl in this special issue.

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780 Poul F. Kjaer

characteristic of its different strands. The concrete forms it might take is, moreover, likely to be
decisive for its degree of sustainability. Albeit having ‘sustainability’ at its centre, transformative
law might, at least in some of its versions and somewhat ironically, turn out to be unsustainable.
Acknowledgements. Thank you to the two anonymous reviewers for their very useful suggestions and comments.

Competing interests. The author has no conflicts of interest to declare.

Cite this article: Kjaer PF (2022). What is transformative law? European Law Open 1, 760–780. https://doi.org/10.1017/
elo.2023.1

https://doi.org/10.1017/elo.2023.1 Published online by Cambridge University Press

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