Electronic copy available at: http://ssrn.com/abstract=2214814

UNIVERSITY OF HELSINKI

FACULTY OF LAW

Justum facere in the Integration Process:

How Should the Law Promote the

Constitutionalization of Europe?

CHRISTIAN JOERGES

LEGAL STUDIES RESEARCH PAPER SERIES

Paper No 23

The paper can be downloaded without charge from the Social Science Research Network at http://www.ssrn.com

Electronic copy available at: http://ssrn.com/abstract=2214814

1

Justum facere in the Integration Process: How Should the Law Promote the

Constitutionalization of Europe?

Christian Joerges

Section I: Theoretical Framing, Guiding Questions and Structuration

The state of the European Union is at present deplorable.1 The need to explore the reasons

for the current crisis is irrefutable, and a new debate on the prospects of the integration

project is urgent. The challenges which this situation entails for legal scholarship are very

considerable indeed. In the formative era of the then European (Economic) Community the

study of European integration was essentially in the hands of legal academics. It was not only

entrusted to those who believed in the autonomy of legal doctrines, but also to scholars who,

like, most notably, Joseph Weiler, suggested that European integration would rely upon, and

be promoted by, law.2 This kind of confidence has been weakened. For quite some time now,

political science has clearly dominated European studies and the quest to take the law

seriously does not find general resonance in the social sciences (see Joerges 1996). To be

sure, there is no trend without certain exceptions. One particular ambitious project, namely

the plea for a European Constitution, has become the focus of intensive research and much

inter- and trans-disciplinary debate. With the failure of this project, however, a major lacuna

in academic research became apparent. This was, namely, the difficulty of coming to terms

with the political economy of an ever more diverse Union and the benign neglect of

‘economy and society’ in European constitutionalism: the failure to consider the

constitutional dimensions of the economic order, which was complemented by the failure to

link democratic aspirations with concerns for social justice (see Joerges 2010). This has led to

a stunning silence amongst legal researchers in face of the current crisis, and it is not yet

apparent when and how European law scholarship will move beyond the paralysis, which this

crisis has caused. This chapter strives for a re-orientation. Its focus will be on the role of law

in the integration project, on its accomplishments and its failures. Its analyses and

deliberations will operate on three levels. They will be historical in that they seek to

1 The draft version of this paper was presented at the 3rd Annual Conference of the Centre of Excellence on

‘Foundations of European Law and Polity’ on 15-16 September 2011 in Helsinki, and at the conference ‘The

Historical Sociology of Law and the Formation of Europe’, held on 4-5 November 2011 at the University of

Copenhagen. I profited from the discussions at both events. Particularly useful were the comments of Kaarlo

Tuori (Helsinki), Mikael Madsen (Copenhagen), and the many suggestions made by Chris Thornhill

(Glasgow). Furthermore, I also benefited from the critical responses of Rainer Forst (Frankfurt am Main),

and Jürgen Neyer (Frankfurt an der Oder), to my discussion of their work. Last but not least, I would like to

thank Chris Engert, Florence, for his sensible help with my use of his language. 2 See the seminal series of studies by Cappelletti, Seccombe and Weiler (1985-87). For recent reflections on this

legacy see Augenstein (2012: chapter 6).

Electronic copy available at: http://ssrn.com/abstract=2214814

2

understand legal developments as responses to the dynamics of the integration process; they

will build upon political science and economic sociology in the reconstruction of this process;

the legal conceptualizations and normative suggestions will try to take these historical

contexts and theoretical assumptions adequately into account. The argument is an exercise in

critical legal thought of a specific kind.

The discourse theory of law and historical sociology

‘[W]e are accustomed to consider law, the rule of law, and democracy as subjects of different

disciplines: jurisprudence deals with law, political science with democracy, and each deals

with the constitutional state in its own way – jurisprudence in normative terms, political

science from an empirical standpoint’ (Habermas 1999: 253). Habermas (1999: 254) explains

how this schism came about – and then raises objections to it on both normative and

theoretical grounds. In the constitutional state as we know it, he argues, a separation of the

rule of law from democracy has become inconceivable; an ‘internal relation’ between the two

has been established which ‘results from the concept of modern law itself’. ‘The lines of

debate between normative and historical-sociological accounts of state legitimacy are

fundamentally polarized. Normative analysis […] sees legitimacy as the attribute of a

political system able to provide rationally generalized justifications. […] Historical-

sociological analysis focuses on the factual aspect of legitimacy’ (Thornhill 2008: 165).

Constitutional sociology as developed and defended by Thornhill does not subscribe to the

linking of prescriptive arguments and analytical observations, with which Habermas’s

discourse theory of law and democracy seeks to respond to the disciplinary schism between

legal and political science. There are nevertheless affinities. Habermas anchors his

constitutionalism in historical reconstructions while Thornhill’s historical sociology seeks to

stay in contact with the ‘facticity of the normative’ and even claims the potential to ‘indicate

that deviation from certain constitutional norms (for reasons that are not normative but

sociological) might be undesirable and might jeopardize the basic resources and structural

form of society’ (Thornhill 2011: 376).

In all of these dimensions, the following deliberations and arguments are indebted to

Habermas’s discourse theory of law in general and also to his contributions to the debate on

the constitutionalization of Europe (See Ungureanu, Günther and Joerges 2011: xi-xxi).

However, we can hardly invoke Habermas’s authority for its core messages regarding the

problematic question of Europe’s legitimacy or the state of the law in the current crisis. In

3

that respect, Habermas seems to take the socio-economic background of Europe’s current

malaise too lightly, and he falls prey to his normative commitments when claiming that this

crisis should and could generate a new constitutional moment.3 The counter-vision of a

‘conflicts-law constitutionalism’, which we will defend in the following, is much more

cautious. Indeed, it may also prove to be hopelessly unrealistic for other reasons. The risk of

such failure is inherent in any attempt to find normatively defensible responses in a state of

uncertainty. The questions which we pose and address are: Can Europe’s crisis turn into a

true constitutional moment or does it require a moderation of integrationist ambitions? Does

the socio-economic diversity of the old Europe and of the enlarged Europe militate in favour

of stronger European powers? Or would Europe be better advised to institutionalize

deliberative fora with a view to generating fair solutions to the conflicts and problems which

Europe’s diversity is bound to produce? These queries do not just concern Europe’s most

prominent philosopher on the one hand and a lawyer at the margins of his discipline on the

other. They are of general topicality and hence present in many contributions to this volume.

The structure of the argument

After President Delors initiated the project of founding an Internal Market, we might have

posed the question: Is Europe about to establish ‘a market without a state’? After the

Maastricht Treaty, given its conferral of exclusive powers in monetary policy and the

implications of this new order for the Member States, we might have posed the question:

Have the Member States become ‘states without markets’? (see Joerges 1996) After the

financial crisis, we might now pose the question: What kind of game are the markets playing

with the Union and its states? – The economy determines our fate, and the constitutional

importance of the market, although more opaque than ever, seems by now self-evident. The

monetary and economic crisis exacerbates dramatically a further European dilemma: namely,

its ‘social deficit’. In the intense debates on Europe’s democratic deficit, the status of ‘the

social’ has remained unsettled. Even though the crisis will not deliver responses to the

theoretical background of this query, it is bound to draw increasing attention towards it. In

this contribution, the status of ‘the social’ and questions of social justice in the EU will take

centre stage.

These questions will be addressed in four distinct steps.

3 See Section V below.

4

In the first step (in Section II), we will draw renewed attention to the conventional distinction

between ‘domestic justice’ and ‘justice between’ autonomous orders. This is not to argue that

the Member States of the Union still remain, or should once again become, independent

(‘sovereign’) entities. This distinction is nevertheless both deeply anchored in the intellectual

legacies of our various legal sub-disciplines, and it is of topical importance for the debates on

justice and solidarity in the Union. To illustrate this, the chapter will provide brief

reconstructions of two classical positions. Namely, it will reconstruct Friedrich Carl von

Savigny’s conceptualization of ‘justice under private international law’

(internationalprivatrechtliche Gerechtigkeit), and Hermann Heller’s theory of the ‘social

state’ (Sozialstaat).

The second step of the argument (in Section III) will address the threefold challenges posed

by the process of Europeanization. That is, it will address, first, the need to abandon justice as

defined under private international law as a model to govern the relations between the

Member States of the EU; second, the erosion of the social state as envisaged by Heller in the

integration process; third, the ensuing efforts to cope with these transformations in a new

synthesis. This will be illustrated through reference to the recent debate on justice and

democracy in the EU between the political scientist Jürgen Neyer, on the one hand, and the

philosopher Rainer Forst, on the other.4 It goes without saying that the lawyer is not

equipped, let alone entitled, to act as an arbiter in such arenas. Instead, we will (in Section

IV) contrast this debate with observations on the present unruly state of two paradigms of

legal integration theory, each of which attempted, in its own way, to establish the legitimacy

of European governance. The concluding part (Section V) will present the lesson that lawyers

ought, in my view, to learn. This lesson is a radical turn to proceduralization and an

understanding of European law as a Recht-Fertigungs-Recht:5 that is, as a law of law

production, which provides orientation both for the resolution of conflicts within the

European Union and for the machinery of transnational problem solving, which it is bound to

establish.

Section II: Two Distinct Worlds of Justice

The divide between ‘domestic justice’ and the normative objectives of the various legal

disciplines which deal with the international system is very firmly established. To exemplify

different sides of this divide, we will treat in the following, first, a post-classical

4 See Neyer (2010; 2011; 2012). For Forst’s comments on this see, Forst (2011a; 2011b; 2011c).

5 For a more comprehensive gloss, see note 40 below.

5

constitutional theory: namely, Heller’s notion of the social state. Then we will treat Savigny’s

classical theory of justice in private international relations.

Social justice in constitutional democracies

‘Can the welfare state survive European integration?’ This query has figured prominently

both on the agenda of European politics and in legal circles for more than a decade. Political

unrest was particularly disquieting during the campaigns accompanying the French

referendum on the European Convention’s Draft Constitutional Treaty. In the proceedings of

the Convention, Foreign Ministers Joschka Fischer and Dominique Villepin had sought to

respond to anxieties about the neo-liberal bias of the integration project by proposing a

‘Contribution to the Convention’, which sought to anchor the notion of the ‘social market

economy’ in the Draft Constitutional Treaty (CONV 470/02). The notion of the social market

impressed the Convention, and it was thereafter included in the Treaty of Lisbon.6 However,

its impact on the ‘really existing’ European polity was less significant. Neither the broader

political public nor the academic community of European constitutionalists knew, in any

great detail, about the legacy of Germany’s social market economy (soziale Marktwirtschaft)

(see Joerges and Rödl 2005). They knew far less about the tensions between this notion and

the social legal state (sozialer Rechtsstaat). The unspecified public scepticism had

nevertheless its fundamentum in re, and the same applies to the difficulties encountered by

Europe’s legal academia in integrating the concern about the problematic question of the

social state into their discourses on the constitutionalization of Europe.

The reference point for analysis of the social market in German domestic constitutional

debate is the social-state clause contained in the Basic Law, which is protected against

amendments by the eternity clause of Article 79 (3).7 Carlo Schmid, the main representative

of the Social Democratic Party amongst the drafters of the Basic Law, instigated this during

deliberations on the Basic Law. In so doing, he attempted to give positive validity to the

theoretical position of Hermann Heller who (like Schmid himself, a leading Social

6 The ‘social market’ had not yet appeared in the first draft of the Convention (CONV 528/03), was then

accepted only provisional until it was transformed into the ‘highly competitive social market economy’ of

CONV 797/03 and Art. 3(3) TEU.

7 Article 20 (1) states: ‘The Federal Republic of Germany is a democratic and social federal state’. Article 79(3)

states: ‘Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be

inadmissible’.

6

Democratic constitutional theorist) had been Carl Schmitt’s most resolute opponent during

the heated constitutional debates of the Weimar Republic.8

What kind of positive validity can such constitutional commitments to social justice claim,

and what orientation do they provide? The first grand constitutional debate in post-war

Germany, now possessing legendary status, addressed these issues. At the centre of this was a

controversy between Ernst Forsthoff (a conservative disciple of Schmitt) and Wolfgang

Abendroth (a constitutional lawyer, on the left of the Social Democratic party). In an

influential essay, Forsthoff argued that it was simply impossible to reconcile the promise of

social justice with the requirements of the rule of law (1954). Abendroth countered this by

asserting that the Basic Law’s commitment to the welfare state (Sozialstaatsgebot) had the

status of a binding legal principle (1967 [1954]: 118). The debate is regularly recalled to this

very day (Eberl 2009). Common-law lawyers tend to regard it with some methodological

embarrassment:

In addressing the ‘wider issues’ of democracy, we are taken beyond the political

sphere to engage with the social and economic organization of society. Once we move

in this direction, agreement about the nature, scope and content of democracy

becomes very contentious. […] By bringing the idea of 'social' into the frame, we then

begin to address the wider issues by incorporating the social and economic aspects of

society into our understanding of democracy. However, as this involves making

normative claims in relation to democracy, it is widely felt that this stretches the

understanding of democracy too far (Burchill 2004: 186).

Both lawyers and philosophers operate outside the limits of their expertise if they attempt to

substantiate their understanding of democracy by incorporating social and economic concerns

into their legal reasoning. Herman Heller was well aware of these difficulties. This is why he

insisted on democratic procedures and legislative autonomy. Social justice, for Heller, is not

pre-defined by the constitution. Rather, democracy entails the mandate to define social justice

and the chance of accomplishing the politically defined objectives.9 On this reading,

8 For relevant writings, see Heller (1971 [1928]; 1930). Heller’s oeuvre has attracted attention in the Anglo-

American world (see Dyzenhaus 1997: 161 ff). 9 Contrast this with the debate, which reviewed in Forst (2007: 270 ff). Our reference to ‘social justice’ remains

philosophically vague. This is because at issue here is not a philosophical theory of justice; we are concerned

7

Hermann Heller paved the way for a proceduralized notion of justice in constitutional

democracies.

Justice under private international law among civilized nations in the international law

community

If we conceive of social justice as an outcome of democratic processes, it will be shaped by

political contest, historical experiences and contingent events. Historians may assure us that

post-war Western European democracies share a commitment to welfarism, but political

scientists will add that the patterns of these commitments diverge,10 and that their

‘harmonization’ is practically inconceivable (Scharpf 2002). How, then, should a

comprehensive ‘European Social Model’ come into being? An additional difficulty for all

those indebted to the legacy of Hermann Heller’s constitutionalism stems from the linkage

between social justice and democratic processes. This problematic question has even older

and deeper roots than the technocratic, as opposed to democratic, foundational moment of the

European Economic Community. It originates in the categorical difference between internal

and external affairs: that is, in the taming of the Political by nation-state constitutionalism, on

the one hand, and the unruliness of the state of nature in the international system, on the

other. The relevant legal disciplines have conceptualized these differences quite rigidly.

Beyond its recognition of commitments undertaken in international treaties, international law

was far from enthusiastic about affirming interference in the economic and social affairs of

the sovereign entities which constituted it. Private international law became considerably

more ambitious with Savigny’s seminal treatise of 1849.11

In what has been praised as a Copernican turn, Savigny developed the vision of a truly

transnational legal order of private law relations which depended, not on the uniformity of

substantive rules, but on the readiness of courts in all spheres of jurisdiction to apply the legal

order in which these private legal relationships were situated. Private international law was

not intended to strive for ‘substantive’ justice, but for uniformity of decision making, which

would be generated by the acceptance of rules able to identify, through a deliberately

‘blindfold test’, the ‘seat’ of a legal relationship (Jessurun d’Oliveira 1976). This is the

distinctive character of the ‘justice’ which the discipline of private international law seeks to

with the scope and the means of democratic structuring of economy and society which constitutional law

should enable but not determine in substance. 10 See the seminal work on this in Esping-Andersen (1990).

11 For the full argument see Savigny (1849).

8

promote. Savigny’s concepts were both revolutionary and realistic. They were revolutionary

in the principled separation of private law from the state and its public policy. They were

realistic in the de-limitation of the scope of the new principles. The mutual respect of foreign

legal orders, their equal treatment, and the toleration of diversity was premised upon an

understanding of private law as an un-political order, which was not permeated by public

policies. This meant that the application of a foreign order would not affect the policies and

interests of a particular state in any significant way (see Vogel 1965: 215 ff).

Savigny’s premises seem clearly outdated today. But his vision of an autonomous

transnational ordering of private-law relationships continues to re-surface in constantly new

variations (see Michaels 2007: 119-44). In the EU, it was advocated with particular strength

after the collapse of the Soviet Union (Mestmäcker 1991: 190). The plea for a ‘return of the

private-law society and its legal order’ was expressly based upon neo-liberal premises and the

re-statement of notions of justice which reject any positive commitment on the part of

constitutional democracies to social justice. We will refrain here from any closer analysis of

this. However, it suffices here to underline the exemplary importance and topicality of the

two reference points of this section (Heller and Savigny), and so to rephrase our

understanding of the problematic question of social justice and democracy in the EU. Our

understanding of this can be formulated as follows. As long as the Member States continue to

exist and operate, be it as the Masters or the Servants of the Treaty, any European synthesis

of social justice and democracy presupposes a twofold transformation. Any synthesis of

social justice and democracy in the EU, in other words, presupposes a re-conceptualization of

horizontal relations and commitments between Member States, and it presupposes an

embedding of this transformation into a democratization of the Union’s institutional

architecture.

To rephrase this challenge: Savigny’s concept of justice as a matter of ‘private international

law’ is categorically different from notions of substantive and distributivel justice. ‘Justice’ in

private international law is accomplished through the application of the law of that

jurisdiction, which has been identified as the ‘seat’ of a legal relationship. The more widely

that selection is recognized, the more this promotes legal certainty among the parties to

private international transactions. Heller’s social state is committed to precisely those

understandings of justice which private international law does not pursue. This discrepancy

comes to the fore within the Community/Union of European states in the debates on the

finalité and legitimacy of the integration project. On the one hand, ‘private international law

justice’ would be a very meager response to the concerns justice among Europe’s citizens,

and it would mark a retreat from the accomplishments of the national constitutional state. On

the other hand, social justice, as Heller’s democratic constitutionalism envisages it,

presupposes societal and political conditions beyond the commitments of the Member States

9

and beyond the powers, which they have conferred to Brussels, Luxembourg and Strasbourg.

What kind of justice, then, can European citizens expect from the integration project? Is some

sustainable European synthesis of ‘private international justice’ and the ‘domestic social

justice’ of constitutional democracies conceivable? If so, how could that be accomplished?

These queries, we assert, do not just concern legal scholarship, but the whole of European

studies.

Section III: Justice and Democracy: Meta-Disciplinary Irritations

The trans-disciplinary importance of the discrepancy between social justice within

constitutional democracies and the ordering of the international system which has inscribed

itself so deeply in the legal disciplines has recently become apparent in an instructive variant

in the debate between Jürgen Neyer and Rainer Forst.12 Neyer, the researcher in European

integration studies and international relations, seeks to resolve tensions between European

democratic aspirations and the institutional configuration of the integration project by a

reduction of European ambitions to a notion of justice (the ‘right to justification’), which is

meant to complement national democracies. Forst, the philosopher, challenges ‘the dogma of

the essential difference between democracy and justice’ (2011b: 2). The lawyer has no

entitlement to act as an arbiter in this contest between the two non-legal disciplines.

However, s/he may be well enough equipped to undertake a different type of exercise (in the

sense outlined above): s/he may reconstruct the specific perspectives of the various

disciplines, and then ask what they can learn from each other.13 This exercise commends

itself here because Neyer, Forst, and the present author all share a concern for the

‘legitimacy’ of the EU, and each of them addresses this problematic question with tools

specific to their respective disciplines. But what do the three disciplines bring to that meeting

point, and what can they learn when observing their differences?

European Justice and Domestic Democracy: Complementarities

Lasciate ogni speranza – Jürgen Neyer has argued that democratic legitimacy is unattainable

in the EU. The search for a cure to the Union’s democratic deficits is focused on incorrect

and ill-conceived issues. Instead of this, the EU has the means to promote transnational

12 See Neyer (2011b; 2012). For Forst’s comments, see Forst (2011a; 2011b; 2011c).

13 This understanding of interdisciplinarity builds upon the following argument in Kratochwil (2010: 122):

‘[I]nterdisciplinary work [...] presupposes familiarity with the respective disciplines and an ability to ‘translate’ the respective insights. It also requires an ability to examine critically the blind spots of each

discipline by looking at them from the perspective(s) of the other(s).’

10

justice among its Member States and to defend its legitimacy upon the basis of this

potential.14 Neyer’s argument modifies the position proposed in a joint publication with this

author as early as 1997, under the heading of ‘deliberative supranationalism’ (Joerges and

Neyer 1997). That notion was meant to provide an alternative conceptualization of the

problematic question of the Union’s democratic foundation. We suggested that European law

had a particular vocation to cure a structural deficit of nation-state democracies: we perceived

this deficit as stemming from the fact that nation states failed to include persons in their

internal political processes who were externally affected by their policies, so that these

persons were, as a consequence, unable to understand themselves as the authors of the acts to

which they were exposed. European law, we concluded, needed to be understood and

practiced with a view to curing this deficit. It needed to perceive itself as deriving its

legitimacy from this potential, and so to structure its interventions accordingly.15 Neyer

continues to defend these ideas – in fact, he seeks to complement and substantiate them. On

Neyer’s conception, the regulative idea and leitmotif of the ordering of the relations among

the Member States of the Union is ‘justice’. Justice is meant here, not in the sense of some

supranational distributive arrangement, but in the sense of a ‘right to justification’ (Recht auf

Rechtfertigung), which European law has institutionalized along with other provisions which

further the compensation of nation-state failures and co-operative problem solving. The right

to justification can be invoked by individual citizens against restrictions of their autonomy.16

This right is not just an individual right. On the contrary, it is a right that encompasses ‘the

duty of the community to produce the material conditions under which individual freedom

can exist,’ (2010: 909), and it is required to govern, as the most recent elaboration of Neyer’s

approach clarifies, the relations between the Member States of the Union (2011a: 492). On

this basis, supranationalism needs to be understood and re-conceptualized, not as a

hierarchical command, but as a horizontal bond between Member States. With its two

dimensions – as a right of European citizens to insist on justification and as commitment of

the Member States to respect foreign concerns and to engage in co-operative problem solving

– Neyer’s right to justification ensures compliance with European criteria which place

restrictions on national autonomy. This type of restraint, however, can be understood as a

democratic command: ‘transnational justice and national democracy not only mutually

14 See Neyer (2011b; 2012). For Forst’s comments, see Forst (2011a; 2011b; 2011c).

15 ‘[T]he legitimacy of governance within constitutional states is flawed in so far as it remains inevitably one-

sided and parochial or selfish. The taming of the nation-state through democratic constitutions has its limits.

If and because democracies presuppose and represent collective identities, they have very few mechanisms

ensuring that “foreign” identities and their interests be taken into account within their decision-making

processes. The legitimacy of supranational institutions can be designed as a cure to these deficiencies – as a

correction of “nation-state failures” as it were’ (Joerges and Neyer 1997: 293). 16 Neyer defines it as an entitlement ‘to demand and receive justification from all those individuals or

organisations which restrict our freedom’ (2010: 908).

11

support but also necessitate each other’ (2010: 918).17 Transnational justice is a distinct form

of justice. It is not the type of justice which Herman Heller’s social state can accomplish

through majoritarian democratic will-formation. It is nevertheless a move far beyond

Savigny’s model of ‘justice under private international law’ because it is not focused on

spheres of private autonomy but engages national polities comprehensively.

Transnational and Domestic Justice: A Common Background

Neyer’s reliance on justification rather than on democratization in the attempt to imagine

conditions of legitimacy in the Europeanization process refers explicitly to the work Rainer

Forst (2010: 908).18 In contrast, Forst seems mainly irritated by Neyer’s focus on the defence

of individual autonomy against political intrusion. He argues that the right to justification is

in its original design embedded in ‘a social normative order without arbitrary rule or

domination’. Forst’s concept of right seems in consequence – much more intimately than

Neyer’s – to be linked to democracy; it entails the ‘right to be part of justificatory practices –

a right to be exercised in democratic procedures’ (2011a 39). Forst’s concern is indeed

distinct. His target is, not the mainstream understanding of Europe’s democratic deficit, but

the general ‘dogma’ in political theory, which postulates an ‘essential difference between

democracy and justice and their potential political incompatibility’ (2011b: 1). The

destruction of this dogma goes hand in hand with two more far-reaching critical claims. He

first rejects the assumption that only states can provide a context within which justice can be

realized. Then he also rejects the idea that it a distinct ‘demos’ is required to exercise ‘the

political practice of justice’ (2011a: 38). This is a much more radical critique of the

traditional distinction between domestic and international justice than Neyer’s. In essence,

Forst’s notion of ‘political practice’ simply pre-supposes that a ‘basic structure of

justification’ is to be constructed ‘where arbitrary rule has to be excluded’. This is not

dependent upon the kind of positive institutionalization in which Neyer anchors his right to

justification.

Section IV. Technocratic Legitimacy contra Institutionalized Economic Rationality:

Two Paradigms of Legal Integration Theory and their Exhaustion

Technocratic planning stood at the beginning of the European Economic Community.

Equally important was the economic project of an opening of the then still national

17 See also Maduro (1998: 162 ff); Howse and Nicolaïdis (2008); Keohane, Macedo and Moravcsik (2009).

18 The reference in particular is to Forst (2007).

12

economies. ‘Technocratic rationality’ and ‘economic rationality’, the two paradigms of legal

integration theory which we will discuss in this section, thus appear as concepts with a

historical and political foundation. And both are powerful enough to suggest parallels with

non-legal disciplines.19 More important in the present context, however, is that we

understand how these traditions have responded to the cleavage of (domestic) social and

transnational justice (‘justice under private international law’). The constructions of Europe’s

‘legitimacy’ through such syntheses will hence be used as the common reference of the

theoretical comparisons undertaken below.

Two Legacies from the Foundational Period

‘Executive power’, ‘executive federalism’, ‘functional constitutionalism’, ‘transnational

administrative power’20 – ever since its inception, and in constantly changing variations,

terms of this kind have been use to characterize the integration project as bureaucratic

machinery. The path-breaking initiator of this tradition was Hans Peter Ipsen, the influential

founding father of European Law as a new legal discipline in Germany (see Ipsen 1964: 14

ff; 1972: 176 ff; Kaufmann 1997: 300). Ipsen’s past was, to paraphrase Hans Ulrich Jessurun

d’Oliveira (2004), ‘not totally flawless during the nazi period’ (Joerges 2003: 182-84).

However, his post-war work on the young German democracy and its Basic Law

demonstrates that he had very clear democratic commitments in general, and he endorsed the

welfarist structure (Sozialstaatlichkeit) of the new order in particular.21 Ipsen’s sensitivity

regarding the precarious legitimacy of the European system and his search for a type of rule

whose validity was not dependent on democratic legitimacy are certainly impressive. With

his understanding of the European Communities as organizations oriented towards functional

integration (Zweckverbände funktionaler Integration), Ipsen at once rejected positions

endorsing more far-reaching federal ambitions and earlier interpretations of the Community

as a mere international organization. He characterized Community law as a tertium between

federal or state law and international law, and he described it as an order constituted by its

‘objective tasks’ and assuming adequate legitimacy through its ability to provide solutions to

these tasks (1970).

19 If Neyer – as Forst asserts – were to advocate ‘output legitimacy’ and supranational problem-solving by

‘proxy or expert discourses’ (Forst 2011b: 2, 7) he would indeed continue the technocratic tradition. That

characterisation does not do justice to the intention to establish democracy-compatible forms of co-operative

problem-solving (Joerges 2006). 20 See respectively Curtin (2009); Schütze (2010); Isiksel (2011); Lindseth (2010).

21 It is sufficient here to point to Ipsen (1988 [1949]).

13

Ipsen represented the public-law department of the new discipline, which was to become, in

German Universities and elsewhere, European law’s, so to speak, natural haven. For

historical and political reasons, Germany was destined to favour – with particular emphasis –

the private- and economic-law dimension of the European project, and to conceptualize its

juridical nature as an ‘economic constitution’. The theoretical basis of this notion was formed

by Germany’s ordo-liberal tradition, which reached back to the beginnings of the Weimar

Republic and was to gain a semi-official status in the new German democracy and even to

provide a trans-disciplinary (legal and economic) foundation for the ‘social market economy’.

Among the core messages of ordo-liberalism were the fundamental human-rights dimension

of private autonomy, the economic benefits of a system of undistorted competition, the

indispensability of law as a means to establish such an order and to protect its functioning,

and the restriction of discretionary state interventions in society founded in private law. The

proponents of ordo-liberalism were fully aware of the strength of Germany’s corporatist

traditions and the collusion of economic and political actors in its history of ‘organized

capitalism’. Such anxieties surely exercised influence on the (ordo)-liberal ‘turn to Europe’.

The European level of governance promised to ensure stronger barriers against Germany’s

not-so-liberal traditions and its political opportunism in economic affairs than could be

expected from the domestic institutional pillars of Germany’s Ordnungspolitik.22

Both conceptualizations of the EEC – that is, its perception as an essentially functional entity

and its interpretation as an economic constitution – provided a synthesis of social and

transnational justice. Both substantially transformed the idea of justice under private

international law into a much more comprehensive set of commitments, which included wide

areas of public law and policy. But this move from pure comity among European nations into

mandatory prescriptions was not meant to erode, let alone overrule, domestic welfarist

accomplishments.23 This is more clearly apparent in the technocratic project with its explicit

limitations of transnational governance than it is in the ordo-liberal project of an economic

constitution of supranational validity. But post-war ordo-liberalism had sought to come to

terms with the simultaneous commitment to the idea of an ‘undistorted system of

competition’, on the one hand, and to the promise of social justice and security, on the other.

This dual commitment required – for the ordo-liberals – the institutionalization of specific,

albeit interdependent, orders: that is, a legally structured order of industrial relations and of

22 See for more detailed analysis Joerges (2005). For a comprehensive reconstruction in economic history see

Abelshauser (2004).

23 This is adequately characterized in Israёl (2005: 96).

14

social security (Arbeits- und Sozialverfassung) along with the legally guaranteed economic

ordo, the ‘economic constitution’ (Wirtschaftsverfassung).

We refrain here from any detailed re-construction of the well-known further development of

the integration project, its successes and crises, and the many efforts to adapt Europe’s

institutional configuration to its various transformations. Instead, we focus on responses of

exemplary importance for the present state of the Union from within the two paradigms.

Technocracy without Efficiency? Majone’s Sceptical Turn

The importance of the technocratic tradition in the practical reality of the integration project

can hardly be over-estimated. Its weight was bound to increase with the involvement of the

European Community in an increasing number of regulatory policies, which were to be

organized at transnational levels without being supported by a consolidated democratic order.

How could the European Community hope to ensure the acceptance of its involvement in

ever more problem-solving activities if not through an ‘objective’ and expertise-based

conceptualization of its enormous tasks? By far the most interesting and influential work to

have renewed and refined the technocratic legacy is that of Giandomenico Majone.24 It is

unique not only in its clarity and coherence, but also in the precision and subtlety of its

reflections on the options for an alternative to the democratic constitutionalism of the

Member States of the European Union. Majone’s famous conceptualization of Europe as a

‘Regulatory State’ (1996), which operated essentially through non-majoritarian institutions,

was conceived as a way of ensuring the credibility of commitments to, in principle,

uncontested policy objectives. Welfare policies pose additional, and categorically different,

problems, he argued. The Union’s failure to institutionalize a comprehensive social policy is

explained by Majone in reference to the ‘reluctance of the Member States to surrender control

of a politically salient and popular area of public policy’. Equally important is the factual

difficulty and political impossibility of replacing the variety of European welfare-state

models and traditions with an integrated European scheme (2010: 144). On one hand, Majone

respects the primacy of constitutional democracies. On the other hand, he underlines (with

increasing urgency) that the integration project has, in fallacious manner, become

comprehensively subject to its ‘operational code’ (the principle ‘that integration has priority

over all competing values) (2010: 1), and he also identifies the camouflage strategies which

he calls ‘integration by stealth’ (2005). This is an alarming retreat from his earlier trust in the

24 For his response to Europe’s integration studies upon his return from the US see Majone (1989; 1991; 2010).

Majone has pointed to the affinities of his concepts with Ipsen in Majone (1994: 23).

15

problem-solving potential of the European project. However, his warnings cannot in any way

be taken to reflect a change in his theoretical premises. Majone continues to underline that

Europe does not have legitimate authority to pursue the type of distributive policies which

welfare states have institutionalized (2010: 128 ff). He does not retract his plea for regulatory

efficiency. His critical turn is, instead, motivated by the inefficiencies which he observes in

the Union’s operations. His quest for more modesty in Europe’s ambitions – expressed in the

phrase ‘Geht’s nicht eine Nummer kleiner?’ (Can’t we content ourselves with a smaller size?)

(2010: 170) – summarizes these observations. His adaption of the ‘unity in diversity’ formula

is a consequence of these insights, to which we will return in the concluding section (2010:

205).

The Financial Crisis: From Economic Constitution to a State of Exception?

Most proponents of ordo-liberalism know all too well of the tensions between their visions

and the Realpolitik operative at all levels of governance. To what degree did Germany’s

social market economy (soziale Marktwirtschaft) represent a society founded in private law

(Privatrechtsgesellschaft)? Is there a grain of truth in Maurice Glasman’s assertion that the

characterization of Germany as a ‘freely competitive capitalist economy’ is a ‘most

fundamental fallacy’, so that we need to stop even calling it a market economy? (Glasman

1996: 56). Can Walter Eucken’s recognition of the specific features of the agricultural sector

really be interpreted as a conceptually sound basis for the establishment of the CAP? (Eucken

et al 1949: 51-54). How did the defeat of the ordo-liberal philosophy of competition law at

European level, the so-called ‘modernization’ of European competition law and the move

towards a ‘more economic approach’, affect the life of the economic constitution? (see

Schweitzer 2007; Schmidtchen 2007). Is the deletion of the ‘system of undistorted

competition’ from Article 3 TFEU (ex-Article 2 EU) truly insignificant because this notion

has survived in Protocol 27? (see Behrens 2008: 193)

Only in one important instance, namely, the adoption of the Treaty of Maastricht with its

substantial broadening of European policies and the recognition of constitutional

commitments to non-economic objectives, did prominent exponents of the ordo-liberal

tradition indicate that their allegiance to the European project might be exhausted (see Streit

and Mussler 1995). The conceptual implications of the present financial turmoil have not yet

been spelled out. The ordo-liberal contribution to its emergence is both tragic and ironic.

Their warnings about the intrusion of discretionary politics into the edifice of the economic

order were placated by the establishment of a European legal framework, which promised to

establish the primacy of law over politics. This occurred through an insulation of monetary

policy, its dedication to price stability, the establishment of the ECB as a fully independent

institution outside the European constitutional order, and the completion of this regulatory

straitjacket by the Stability Pact. When the German Constitutional Court, in its Maastricht

16

judgment,25 designated economic integration as a non-political phenomenon occurring

autonomously outside the Member States, and interpreted the whole construction as a

constitutional imperative for other, albeit insignificant, reasons, the otherwise extremely

critical academic community (Bryde 1994; Weiler 1995; Mayer 2000), remained silent.26

The failures running through the whole construction of a Monetary Union, which can, by

now, no longer be passed over in silence, have led to hectic activities, opaque bargaining and

a treatment of the rule of law, which seemed to be far beyond the power of juridical

imagination.27 A noble normative reason – namely, solidarity, understood as a valid legal

principle and duty in the EU – is invoked to justify this readiness to take the letter of the law

very lightly. There are many lawyers, political scientists, even economists and philosophers

who share this concern (Calliess 2011a: 6; 2011b; Morgan 2011). Solidarity is the overriding

principle and duty in the name of which serious normative reason is invoked to disregard the

law. The solidarity among the Member States of the EU, as it is actually practiced, may,

however, seem to have much more mundane reasons and much less beneficial effects.28

What is clearly visible is that its legal implementation will come at a price: solidarity

militates in favour of helping the other, but it is to be exercised with a view to accomplishing

the cure for the other’s failures, who must, therefore, be subjected to corrective economic

governance (nachholende Wirtschaftsregierung) by those who help.29 Rainer Forst, in the

somewhat gloomy passages of his remarks on the prospects of a democratic EU, envisages a

scenario in which democratic justice is sacrificed for ‘an increase in the standard of living for

many as well as further elitist and technocratic forms of rule’ (2011b: 12). This is quite close

to the above-mentioned type of juridification of solidarity. Unfortunately, even the promise of

a beneficial economic outcome is not really credible.

An Interim Conclusion: The Unaccomplished Synthesis of Transnational and Social Justice

25 See Brunner v. European Union Treaty.

26 There are, of course, exceptions. For an insightful analysis of Monetary Union, see Snyder (1998).

Instructive also are the briefs provided by Murswiek.

27 Article 122(2) TFEU has not to date been a widely known provision and it therefore deserves to be cited:

‘Where a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural

disasters or exceptional occurrences beyond its control, the Council, on a proposal from the Commission,

may grant, under certain conditions, Union financial assistance to the Member State concerned. The

President of the Council shall inform the European Parliament of the decision taken”. – Europe’s large

community of constitutionalists is again (un)surprisingly silent. See, however, Antoniadis (2011); Bruun

(2011); Calliess (2011); Chalmers (2011); Chiti, Menéndez and Teixeira (2011). 28 Here we follow here Streeck (2010); Mayntz (2010; 2011).

29 Calliess (2011c). His term recalls Habermas (1990), which deals with the transformation of the former GDR.

17

The financial crisis and its implications are the most drastic illustration of the fact that the

leading paradigms of integration theory are now exhausted. This is not to say that these

paradigms will loose their impact. The current management of the financial crisis continues

to adhere to neo- and ordo-liberal recipes, which merge with, and are in turn executed in,

technocratic procedures. The most pressing danger for social justice stems from the rigidity

with which the austerity policies are imposed – in particular, in the south of Europe (Scharpf

2011; 2011b). Precursors of these developments have been visible. Ever since the turn to

monetarism as Europe’s guiding economic theory and price stability as Europe’s highest

constitutional commitment, all protective legislation and social entitlements could be

perceived as impediments to economic efficiency and growth. The quite spectacular line of

cases, in which the ECJ has assigned primacy to the economic liberties over national

collective labour law and related arrangements,30 has at least implicitly confirmed such

views. As Simon Deakin has pointed out in a recent essay: this chain of judgments started in

December 2007, only a few weeks after the beginning of the financial crisis. We cannot,

Deakin adds, discern a certain and direct link between these rulings and the financial crisis or

the institutionalization of monetary policy. What seems apparent to him, however, is that this

background has helped to legitimize a specific way of thinking about the relationship

between the legal system and the process of economic integration (Deakin 2011). This is

neither a particularly encouraging basis for the further theoretical exploration of a possible

synthesis of domestic and transnational justice nor a good reason to suspend such efforts –

including the search for interdisciplinary learning.

In view of the common past that connects this author with Jürgen Neyer, it cannot come as a

surprise that we recognize in principle his distinction between the legitimacy of

Europeanization and the democratic legitimacy of constitutional states. On two issues our

views diverge. In 1997, we jointly examined the vocation and potential of European law for

correcting the structural democracy deficits of the Member States through a reconstruction of

core provisions of primary law and leading ECJ cases. Neyer’s trust in the prudence of the

ECJ and in the normative quality of the doctrines the Court is, in our opinion, exaggerated. A

benevolent reading of the Court’s jurisprudence is a legitimate strategy of legal interpretation.

But it is not possible and justified in all cases.31 Even the Cassis-de Dijon case, which we

have cited as our prime example of a just mitigation between German, French and European

30 Case C-438/05, International Transport Workers’ Federation, Finnish Seamen’s Union v Viking Line ABP,

[2007] ECR I-10779; Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, [2007] ECR I-11767; Case C-346/06, Rüffert v Land Niedersachsen, [2008] I-1989. See Joerges and Rödl (2009).

31 Suffice it here to point to the recent case law on labour law, cited in note 80 above.

18

concerns, rests on highly questionable constitutional assumptions. To be sure, the Court has

institutionalized a right to justification on behalf of European citizens and corresponding

duties of the Member States. But its conception of this obligation subjects the political

autonomy of Member States to enormous restriction, as they can only invoke those reasons

which the ECJ has enumerated. By the same token, the Court has assigned to itself wide

discretionary powers as a constitutional court above national authorities.32 Similar

reservations, unfortunately, need to be added to our defence of comitology as a model of

‘deliberative supranationalism’. The type of constitutionalization of this institution which we

envisaged is not proven to be the road taken in the institutional development of European

social regulation (see Joerges 2008; Everson 2011; Falke 2011).

Jürgen Neyer’s main target is the perception of the European legitimacy problem in his home

discipline. His main ambition is to develop an alternative, which is more realistic than the

mainstream of integration studies in political science and nevertheless normatively attractive.

Rainer Forst operates at a philosophical level. His main targets are competing normative

theories. This is not to say that his philosophical reasoning is insensitive to practical and

institutional complacency. The legacy of critical theory shields him from such complacency.

It seems at least plausibly possible to translate his views on the ‘co-originality’ of justice and

democracy into the endeavour to realize social justice alluded to above.33 The same holds

true for his critique of the assumption that democracy beyond some ‘demos’, would be

inconceivable. What he has to say about transnational justice is definitely relevant in the

debates on the constitutionalization of international law (2007: 357 ff).

It also remains true, however, that the approaches promoted in European studies, philosophy

and law remain distinct. This is the case even where they use the same vocabulary.

‘Proceduralization’ is a case in point. Even though there is a degree of commonality in their

rejection of prefabricated formulas or recipes and insistence on productive participation and

involvement in the generation of justice, European studies, philosophy and legal science have

to come to terms with very different challenges. The lawyer’s contribution to the realization

of justice resides in conceptualizations of claims, institutional ideas and practical suggestions

with which the legal system can be constructively confronted. This kind of activity needs

inspiration from political science and political theory. But it also requires a productivity of its

own.

32 For an elaboration of these points see Menéndez (2011: 175 ff); Fossum and Menéndez (2011: 45 ff).

33 See Section II above.

19

Section V: Justum Facere in the Europeanization Process

It is difficult to imagine a more critical state of the Union and its law than the present. The

time of permissive consensus, the confidence that Europe will master this crisis as it has done

so often in the past, is fading away. One cannot be more passionately committed to the

European project than Jürgen Habermas and Hauke Brunkhorst (see Habermas 2009, 2011;

Brunkhorst 2011). Both agree in their diagnoses. They see Europe on course towards an

‘executive federalism’ and ‘technological (mis)management’, which is threatening

democracy and the rule of law. However, both also believe that the crisis will impose

constraints which may be transformed into a democratic constitutional moment (Habermas

2011; Brunkhorst 2011: 466). Perhaps, in the shadow of such scenarios, it may appear rather

naïve to reflect on perspectives forming alternatives both to the perception of immediate

catastrophe and to a (somewhat improbable) democratic future. And yet, it would be simply

irresponsible not to do precisely that. The federal vision of Europe has, although often

proclaimed, never been realistic. However, a return to autonomous nation states is neither

likely nor desirable. For quite some time, certainly since enlargement, it has been essential to

take Europe’s diversity seriously. In view of the very different histories and historical

experiences of the European States, the deepening of the variations in their socio-economic

constellations, their uneven potential to pursue objectives of distributive justice and to

respond to economic and financial instabilities, it has become increasingly inconceivable that

the European publics will converge in their political perspectives. In particular, it has become

inconceivable to find and endorse a magic formula, able to institutionalize a pan-European

system ensuring social justice. Should one exclude the availability of a ‘third way’, lying

somewhere between a defence of the nation state, on the one hand, and federalist ambitions,

on the other? The pattern of ‘conflicts-law constitutionalism’, outlined below, argues that this

question can find an affirmative answer.

Conflicts-Law Justice

The idea of conflicts-law constitutionalism has been presented quite often and at some

length.34 It should suffice in the present context to restate briefly the basic analytical

premises of this approach and its normative premises. These premises are as follows: the

European nation-states have, for compelling historical reasons, established a Community

which was, in its foundational period, meant, first of all, as a response to their ‘bitter

experiences’, but which also sought to foster the well-being of the Community’s citizens. 34 For an elaboration see Joerges (2011); Joerges Kjaer and Ralli (2011).

20

This latter rationale has developed an enormous independent dynamic. It has deepened inter-

dependencies and produced irresistible demands for co-operation between Member States.

The alternative, which the conflicts-law approach advocates is to tolerate and to take the

fortunate motto of the otherwise unfortunate Draft Constitutional Treaty seriously. That is to

say, the principle of ‘Unity in Diversity’ needs to be read as Europe’s vocation,35 and it

needs to be viewed as a challenge to transform what may be perceived as a precarious

constellation into a stable and sustainable co-operative venture.

There are strong normative reasons why conflicts-law constitutionalism proposes itself as the

legal basis and framework for this venture. Europeanization has generated a constantly

increasing distance between decision makers and those who are affected by decision-making.

This schism is widely perceived as a characteristic of decision making at European level,

which affects European citizens profoundly, but does so in non-transparent ways, which

admit few opportunities for holding the decision makers accountable.36 The schism is a

normative challenge to democratic orders in which citizens can interpret themselves as the

authors of the rules with which they are expected to comply. However, the schism is also one

which is inherent in nation-state government. Increasingly, constitutional states are unable to

guarantee the inclusion of all the persons upon whom their policies and politics in internal

decision-making processes have an impact. The conflicts-law approach offers a way out of

this dilemma, which turns the debate on the European democratic deficit upside down. It re-

conceptualizes European law as a means of compensating for the democratic failure of nation

states, and it suggests that it is precisely from this potential that European law can derive its

legitimacy.37

The elaboration of this argument is a long-term project, which has to substantiate various

pragmatic dimensions and find responses to complex normative challenges. The most topical

implication today concerns the scope of European activities and both the legitimacy and the

limits of European competences. The compensatory function of European law provides sound

normative reason for restrictions of national political autonomy. However, it would, at the

35 Article I-8 Draft European Constitutional Treaty (OJ C 310/1, 16/12/2004).

36 See Habermas’s very first essay on European integration (1990). The Luhmannian parlance should not

distract from Habermas’s democratic concerns. They coincide with our argument that the supranational

European conflicts law has to counter the democratic deficits of nation states: its inability to include those concerned into national decision-making.

37 See note 15 above.

21

same time, impose justificatory constraints upon the adoption and implementation of

European measures.

What is most important to underline and to understand in this regard is that the conflicts-law

approach needs to break radically with the legacy of ‘methodological nationalism’ within the

traditions of both continental private international law and Anglo-American conflict of laws.

This break is inherent in the normative core of the conflicts-law methodology, and it is also a

pre-requisite for its operation in the multi-level system which the European project has

generated. Our approach accordingly:

distinguishes between vertical, horizontal, and diagonal legal conflicts in the EU, i.e.,

conflicts about which legal norms apply to a given case. […] Vertical conflicts are

conflicts between legal regimes at different territorial levels; they occur both between

national law and EU legislation. […] In horizontal conflicts, which represent the

traditional PIL setting, the injunctions of different national laws to a given case

diverge. Horizontal legal conflicts occur typically in the context of transactions

involving the movement of persons, goods, or finances across national borders.

Diagonal legal conflicts finally occur if regimes at two different levels that apply to

different aspects of a given case make contradictory demands (Mayntz 2007: 23-4).

The pure diversity of these conflict constellations militates against any hierarchical re-

construction of the European polity – and the very nature of these conflicts militates in favour

of a differentiated, three-dimensional approach. The compensation of the democratic deficits

of the nation state is the prime task of European conflicts law. But Europe does not only need

to alleviate itself of the law’s nationalist and parochial legacy – it also needs to provide

constructive responses to its increasingly inter-dependent, regulatory tasks and problems. It

has to re-constitute, within Europeanized frameworks, the ‘geology of the law’ of

constitutional democracies, the need for problem-oriented ‘special’ legislation, the

development of a regulatory machinery with specific institutional infrastructures, the

inclusion of non-governmental actors into regulatory tasks, and the supervision of the

governance arrangements within which such co-operation can take place.

22

However, we do not intend to go into the complex details of such efforts here.38 Instead, we

reserve the remaining space for our guiding normative question: In what way can this type of

conflicts-law affect or, as we propose, accomplish a new synthesis of social and transnational

justice?

Re-constructing Justif(y)ication

The conflicts-law approach operates in all of its three dimensions without a substantively pre-

defined finalité and without a system of doctrinal recipes. The conflict constellations to which

European law is required to respond are simply so multi-faceted and unpredictable that a pre-

fabricated system of rules able to provide orientation for ‘just’ solutions is simply

inconceivable. The deeper normative reason for this type of legal indeterminacy, however,

resides in the need to elaborate new answers in the search for a proper mitigation between

European and national concerns. Conflicts-law solutions must be generated in a ‘discovery

procedure of practice’ (see Joerges 1986: 153). That is, it must be generated in a process,

which aspires to what Rudolf Wiethölter has called Rechtfertigungsrecht (Law of Just-

ification): a process in which the mysterious potential of law to transform social contexts, to

extract socially-adequate legal concepts from these social contexts, and, both at the same time

and in the same move, to create the legitimacy of this law production becomes evident

(2005). Wiethölter’s visionary notion is adequately deciphered as the ‘dual self-justificatory

and juridification tendencies of all law within society’ (Everson and Eisner 2007: 41). It is an

attempt to renew the ‘proceduralization of the category of law’, which Wiethölter had already

conceptualized in the 1980s, at the same time as, or even before, Habermas systematically

elaborated this notion as a bridge or mitigator between facts and norms.39 More openly and

strongly than Habermas’s latter concept, Wiethölter’s idea of Rechtsverfassungsrecht [Law

formed through the constitution of law] underlines its societal sources, a message which the

title of his essay – ‘Recht-Fertigungen eines Gesellschafts-Rechts’ – captures in a very

condensed form.40

38 The terminology may appear idiosyncratic. The messages, however, which it seeks to transmit, reflect quite

widely shared insights into the need to evaluate the geology of modern legal systems in differentiated ways.

See for example Nickel (2008); Calliess and Zumbansen (2010: 21 ff); Tuori, (2011: 207 ff).

39 See Wiethölter (1982; 1989); Habermas (1992: 516 ff).

40 ‘Just-ifications of a Law of Associations’ is the translation that Ian Fraser, Florence, has found. Fraser notes

that Wiethölter ‘engages in many kinds of wordplay, often splitting the compound words common in

German into their component parts to suggest several meanings at once. Most of this is untranslatable’, he

added; ‘the flavour resembles that of the style of some preachers in English, who split ‘atonement’, say, into “at-one-ment”. I have added the occasional note [-tr], where unavoidable, to elucidate otherwise

impenetrable connections’.

23

The conflicts-law approach is always susceptible to the question: How can we be sure that a

law finds justification? In response to this, it is important to underline that the conflicts-law

approach, including its methodological underpinning, is conceived as a re-constructive

enterprise. It is possible to re-construct the contexts which generate competing claims. It is

possible to examine the factual and normative reasons of the pertinent contenders. It is finally

possible to expose the responses of the decisions-making bodies to the crucial question on

what grounds they may ‘deserve recognition’.41 This exposure has to take the ‘geology’ of

modern law into account. ‘Purposive programming’, the recourse to specialized agencies, and

the integration of expert knowledge into legal decision making, require specific evaluation

criteria. So does the supervision of governance arrangements, which are gaining ever more

importance in transnational arenas. Exemplary studies in which such exploration has been

successfully undertaken are available. Yet what appears simply inconceivable is the

elaboration of a comprehensive body of substantive European legal provisions as an

embodiment of pan-European ‘justice’. To rephrase our title: Justice has to be generated

through law-making processes in which Europe realizes its ‘unity in diversity’.

41 Habermas uses this formula quite often. See Habermas (2001: 113).

24

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