This article examines the constitutional imagination of European policymakers and legal scholars in the 20 th and 21 st centuries who participated in key treaty drafting processes that led to the listing of a series of values central to Europe’s identity in the 2012 Treaty on the European Union (TEU) and the 1919 Treaty of Versailles, which established the League of Nations – or Société des Nations (SDN) –and the International Labour Organization (ILO). Based on this historical comparison, the article argues that the concept of a European ‘society’ characterised by a specific set of what I call ‘social-democratic values’ (listed in Article 2 of the TEU) should be read in continuity with the 20 th -century civilizational project of modern international law scholars who shaped the working of the SDN in the interwar era. Many international legal scholars close to the SDN were inspired by the French sociological school and social-democratic ideals: they anchored the working of international legal rules on the solid rock of an ‘international society’ marked by a series of values which seemed ‘modern’ in the sense that they reflected the emergence of a ‘society of individuals’ whose freedom and social rights went beyond those granted by sovereign states at the time. When seen against this historical background, the introduction in Article 2 of the TEU of a concept of ‘society’ characterised by such social-democratic values, such as pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men, to ground the EU’s constitutional order, betrays less the influence of contemporary sociological thinkers on the EU constitutional framers, than that of socio-legal theories developed by interwar scholars who wanted to modernise the operations of European colonialism and internationalism.
This article offers a critical literature review on the debate on constitutional identity, combining a synthesis of existing literature with a critical reframing of the concept’s theoretical and methodological foundations. While constitutional identity has become increasingly prominent in legal and political debates – particularly within the European Union – its meanings and functions remain contested. The article develops a typology of approaches to constitutional identity, distinguishing two main strands. First, it examines constitutional identity as a legal doctrinal notion. In this sense, identity can function either as a static concept – anchored in an unchanging normative core that limits political or legal interference – or as a dynamic concept, shaped through interactions between domestic constitutional orders and external legal ideas and practices. Second, the article turns to the descriptive use of constitutional identity, understood as a way to explain how a political community understands itself through its constitution. This part surveys key philosophical debates, including how constitutional identity negotiates sameness and difference, how it evolves over time, how it relates to competing conceptions of the constitutional subject, and how it is constructed through narrative, symbolism, and social practice. The article concludes by arguing that if constitutional identity is not a fixed essence but a dialogical and constructed assemblage of identities, then its study must go beyond the legal domain. It calls for a deepening of the interdisciplinary research agenda that includes insights from philosophy, sociology, discourse theory, and literary studies.
This is a commentary on von Bogdandy’s article ‘On the Meaning and Promise of European Society’. It attempts to outline what an account of European society might look like if it were formulated from a more straightforward Hegelian perspective.
The European constitutional navigation of the noughties succeeded to stipulate that European integration had ushered European society (Article 2 TEU). This choice remains underexplored. In light of current European uncertainty, the contribution explores meaning and promise of European society. The concept can counter the Europeans’ incomprehension of their union by integrating their heterogeneous European experiences into one familiar notion. It shows their conflicts as normal and possibly productive, occurring in one society rather than between discrete Member States. It suggests to understand their democracy as a principled struggle for compromise. Not least, European society substantiates the EU’s new principled constitutionalism that goes against excesses of the ‘will-of-the-people’ approach.
The European Union (EU) Emissions Trading System (ETS) is the cornerstone of the EU’s attempt to decarbonise economic production in Europe. This paper questions the power and class relations that are built into the EU’s choice to address the climate crisis through the legal construction of emissions trading. Drawing on Marxist theory, the paper argues that the cost of emission allowances imposed by the ETS is a form of climate rent . In both the choice of this system and its implementation, the EU prioritises capital accumulation in order to protect the competitiveness of EU firms on the global market. This paper argues that the ETS thus jeopardises the progress of decarbonisation on two grounds. First, the EU’s implementation of the ETS has tended to increase the economic wealth of capital by redistributing economic value away from workers and towards the capitalist class. By raising the cost of essential goods, the ETS will likely damage the reputation of climate action and thus jeopardise public support for decarbonisation. Second, the ETS is part of the EU’s indirect approach to climate policy, which seeks to shape the actions of private capital in the direction of climate objectives. However, the severity of climate change calls instead for the use of law and public power to directly and consciously shape the rapid decarbonisation of society.
The question to what extent EU law is constitutive of European society as articulated in Article 2 TEU is, at its core, a question about the nature, scope and limits of EU law. This article suggests certain clear limits to EU law’s ability to make the European society visible in law, or legible for law – let alone composable through law. The article is entitled ‘Is this Europe?’ as a direct challenge to the widely held belief that EU law is somehow constitute of European integration; that EU law contains all that European integration is, can and will be. Sure, the Europe that we see when analysing cases, treaties and legislation matters. But the ‘real’ Europe – the one that is felt, experienced, lived – resides in what happens due to, in spite, or irrespective of those cases, treaties and legislation. For EU law to remain sensitive to its society, then, EU law needs to reformulate the expectations it has of itself and create an analytical framework that allows it to transcend its immanent nature. This requires three changes to the way we ‘do’ EU law. First, more sensitivity to the material and relational context in which EU law operates. Second, creating space for forms of lay knowledge that are rooted in social praxis. Third, more ambition and playfulness in the way we – as scholars – ‘speak’ EU law.
The recent turn to market activism is transforming the politics around the state and capitalism, while significantly restructuring markets. We focus on one important but understudied element in this development: the securitization of market competition in the European Union. We argue that European political actors are strategically using specific narratives to construct competition policies in a new way, one that implicates the geopolitical standing of the EU and its national security. This contrasts with the longstanding view of EU competition policy as existing in a separate sphere, disembedded from politics, where market efficiency is paramount. To empirically capture this change, we undertake a systematic analysis of DG Competition Annual Reports, using a language-analysis schema over the decade from 2013 to 2023. Our findings demonstrate that this securitization strategy has been consistently increasing over time in the EU, evidenced in the rhetorical use of crises, the linking of markets to a larger set of issues and policy goals, the invocation of geopolitical pressures, and the framing of a need for the consolidation of EU power. We note, however, that this policy turn towards securitization of economic policy brings substantial political tensions given the EU’s limited democratic accountability.
This symposium brings together a group of legal scholars who participated in a research project called European Society. The project originates in a meeting of the two of us and a mutual engagement with our texts. In 2022, Loïc Azoulai published a short piece on ‘The Law of European Society’ in the Common Market Law Review. The same year, Armin von Bogdandy published a book under the title Strukturwandel des öffentlichen Rechts. Entstehung und Demokratisierung der europäischen Gesellschaft (Suhrkamp), translated in English as The Emergence of European Society through Public Law (Oxford University Press 2024). At the time of publication, we were unaware of each other’s work – evidence, perhaps, that the theme was in the air. Owing to our differences in orientation and style, we decided to set up a research group, with the aim of providing a new account of the experience of Europe in the current context, marked by disorientation and polarisation, but also widely shared calls for ‘more Europe’. Europe’s current condition and its future possibilities are deeply affected by what many have classified as ‘crises’ (financial and economic crisis, migration, rule of law, external threats), but also what some Europeans even experience as ‘catastrophes’ (climate change, digital revolution, pandemic, war). The original idea was that the concept of ‘European society’ might help to get a better picture of the Europeans’ situation as well as ideas for the future course.
This article draws a legal portrait of President Lenaerts, in an attempt to critically examine both his description of the institution to which he belongs, and his influence upon it. It is based on a comprehensive study of his public and formalised statements (published or on podcasts) since the year of his election in 2015. Based on these research materials, this article examines the contextual elements of Lenaerts’ personality, career path, and the challenges currently facing the European Court of Justice. It also illustrates that Lenaerts is an exceptionally gifted legal mind, educated from his earliest years in Community law, with a career both shaped by and devoted to the Court. The article argues that, although Lenaerts remains publicly discreet about the Court’s internal organization, he nonetheless exerts a significant influence over its functioning and reform process. Furthermore, while Lenaerts publicly defends the idea of law as apolitical, he advances a normative vision of what EU law ought to be and asserts that its current form serves the interests of European citizens. Lenaerts is an influential President who skilfully leverages his scholarly authority to defend the Court and its jurisprudence, presented as coherent. Yet, his position is not without ambiguity, as he frequently shifts roles – scholar, citizen, or President – while defending a specific point. A significant part of his influence lies in the subtle gaps between his professed positions and his concrete actions, as well as between his dual role as scholar and as President—two interstices where institutional power is exercised less visibly, but no less effectively.
This editorial critically examines the European Union’s rearmament agenda, framed by the Commission’s Readiness 2030 plan and the Security Action for Europe (SAFE) Regulation, in response to geopolitical threats and possible US disengagement. While EU leaders present military investment as essential for safeguarding the ‘European way of life’, the measures proposed reveal a deep disjunction between rhetoric and reality. The plan falls short of establishing genuine strategic autonomy, as NATO remains central and procurement from US industries is reinforced, undermining the claim of independence. Moreover, by relying primarily on national spending and only modest EU financial instruments, the initiative risks entrenching asymmetries between Member States, strengthening national military–industrial complexes rather than building a coordinated European defence framework. By the same token, the legal dimension is equally fraught: the selective use of (national) escape clauses in the Stability and Growth Pact and the reliance on Article 122 TFEU for SAFE highlight the EU’s increasing dependence on creative but legally precarious interpretations. Substantively, the rearmament effort may erode the European social model, as higher defence spending is likely to erode welfare and public investment. Ultimately, the project reflects continuity with past crises: lofty integrationist rhetoric coupled with measures that entrench fragmentation and fiscal imbalance.
This article establishes a foundation for the development of Marxist approaches to European Union (EU) law. While Marxist scholarship has engaged with European integration throughout its history, it has largely overlooked the legal architecture of the EU. Conversely, EU legal studies have remained largely insulated from Marxist thought, even as critical approaches have begun to gain traction. Bridging this mutual neglect, the article argues that EU law must be understood not as a neutral or technocratic system, but as a central element of capitalist social relations both in Europe, and in terms of Europe’s wider integration in the global market. In this way, EU law is bound up with processes of accumulation, imperialism, and racialised social reproduction. Drawing on key currents within Marxist theory, the article situates EU law within the historical dynamics of capitalist development, demonstrating how a materialist legal analysis can deepen and enrich existing critiques of European integration.
Over the last two decades, Marxism has experienced a significant revival, including in the discipline of law. The 2003 Iraq War and, perhaps more obviously, the 2008 financial crisis posed questions about the relationship between law, capitalism and imperialism that mainstream legal scholarship had difficulty answering. One marked exception to this revival has been in the field of European Union (EU) law. EU law scholarship, perhaps understandably given that few Member States participated in the invasion, had little to say about the Iraq War. For its part, the 2008 financial crisis and its manifestation in Europe as the ‘Euro-Crisis’ prompted a ‘critical turn’ in EU legal studies.1 However, these two movements – the Marxist tradition and critical EU law scholarship – have largely failed to meet. Marxist analyses of EU law, let alone the development of a full-blown Marxist theory of EU law, remain almost non-existent.
In this interview Christian Joerges reconstructs his intellectual biography. A childhood marked, like that of his entire generation, by the Second World War, a harsh post-war period and, from an early age, a complex relationship with German identity on the shadow of Nazi crimes. A high school and university education in a Frankfurt where intellectual life is thriving amidst the ruins. And where a young Joerges discovers the beauty of theory thanks to Wiethölter. The experience in the United States where a pluralistic student movement is energised by the opposition to the Vietnam war. The construction of a law faculty in Bremen, with the almost impossible goal of transforming the teaching of law in Germany. The almost 20 years of Florentine experience, in the shadow of history and with the determination to imagine a Europe capable of being progressive. And without omitting reflections on the dark legacies of European law and on ordoliberalism, two phenomena that many European scholars have discovered thanks to Joerges.
AbstractThe European Legal order, created by the European Court of Justice [ECJ], is an astonishingly effective treaty enforcement system. Previous explanations of its ‘transnational’ or ‘constitutional’ development have focused on the politics of judicial networks, and the wider political and economic context of postwar European democracy. Judicial biography has been almost entirely overlooked, even in the case of Robert Lecourt, widely acknowledged as the leading judge in the Court’s revolutionary period. Unknown to research on the ECJ, however, Lecourt had already spearheaded the adoption of the famous Article 49-3 of France’s 1958 Constitution. This paper demonstrates that the constitutional doctrines of European law and Article 49-3 were in fact premised on a similar ideology, that the pursuit of ‘effectiveness’ may require unprecedented restrictions on the traditional law-making role of national parliaments. Those were the constitutional values of the judge that, more than any other, built the foundations of the European legal order.
Taking the claims of Artificial Intelligence firms seriously implies that these firms now benefit from legal defaults and vacuums that allow them to enclose economically relevant intellectual capacity and therefore cause mass displacement of labour. This process is carried out unilaterally and without compensation, and thus likely results in the pauperisation of a significant proportion of people worldwide. Thomas Paine’s analysis of land enclosures provides one way to think of enclosures of economically relevant intellectual capacity, and points to a universal basic income drawing from a data tax as a right derived from this enclosure.
