As health has been made both more effective and expensive by medical advances, it has raised political concerns in terms of how to sustain such improvements and, at the same time, guarantee access to them by the patient citizen (PC). Concerns about the sustainability of increasing health expenditures through time are at a trade-off with the expansions in the quality and quantity of life, which, especially in wealthy societies, are much more valued than expansions in consumption and income. In this chapter, we look at how three standard models (electoral models, power dominance and lobbying) have been theoretically introduced and empirically tested in the field of health innovation. We argue that innovations in health are subject to increasing political scrutiny by the PC, and this can give rise to dramatic changes in the political incentives of voters, interest groups and branches of government.

This chapter should be read as an ideological (self-) critique of the role and function of critical legal scholarship in the rise of the “social” after 1960, first, at national level, later, at EU level. Critical legal scholars have all too often understood critical legal theory as practice of theory, in which law is there to help to protect the weaker parties in society and to compensate for the imbalance of power. The decline of the welfare state and the “neoliberal move” in the EU teaches us that law can be politicised not only to promote the “social” in the name of justice but also to de-construct the “social” in the name of economic efficiency. The revival of the political economy provides for an opportunity to re-think the role of law in the secular compromise between capitalism and democracy.

The chapter starts with an observation: contemporary élite jurists pursue, vis-à-vis one another, a “hermeneutic of suspicion”, meaning that they work to uncover hidden ideoogical motives behind the “wrong” legal arguments of their opponents, while affirming their own right answers allegedly innocent of ideology. The rise of the hermeneutic of suspicion is a striking manifestation of the contemporary transformation of the relationship between legal élites and political economic élites. This transformation accompanies and corresponds to the progressive juridification, judicialisation and finally constitutionalisation of the contemporary social order.

The function of EU competition law is seemingly apparent: to prohibit cartels amongst firms and combat the abuse of positions of economic dominance in order to ensure effective competition and, eventually, to maximise consumer welfare. What is less apparent are the more covert socio-economic ordering effects of this externally imposed legal system on institutions within EU Member States that may historically/culturally have organised economic sectors upon the basis of social logics that do not necessarily accord with the centrality of competition and its accompanying logics as a principle of social organisation. This may apply in particular to economic sectors that have historically been organised to serve producerist objectives or interests (an orientation of the state on the supply side of a market). A (economic) consumerist orientation is, by contrast, focussed on purposive rights and interests on the demand side of the market-in particular, primarily as an interest in competitive prices and choice for consumers. This chapter discusses this potential clash of organisational logics by reviewing how the structure and application of EU competition law may tilt EU Member States from producerist towards consumerist socio-economic orientations. It shall do so upon the basis of a critical reflection of attempts by the European Commission to “liberate” the liberal professions and more recent examples in The Netherlands that demonstrate how EU competition law may install a logic of consumer welfare as a primary principle of social organisation whenever firms co-operate to achieve public interest objectives.

In contrast to current versions of critical theory which in their attack on liberal-capitalist societies develop a more or less vague vision of a socialist society, Christoph Menke, - Frankfurt School third generation - in his brilliant monograph, Kritik der Rechte, Suhrkamp 2015 (A Critique of Rights) fights on two-fronts. He directs his critique not only against liberal-capitalist formations with their conglomerates of societal power, but also against socialist-communist formations with their totalising aggregation tendencies. Against both, he attempts to formulate a theory of the authentic political judgment, which is based upon “counter-rights” in a “new law”.

In the face of obvious deficiencies of both formations, this is a remarkable attempt to develop utopian ideas in politics and law. Building on these ideas, the author suggests is to go beyond individual counter-rights on which Menke focuses exclusively, and to articulate genuinely social counter-rights in three dimensions – in the communicative, the collective and the institutional dimension. What is more, they need to be developed in two directions. One direction is the attribution of counter-rights to collectives, organisations, social movements, networks, functional systems, not as substitutes for individual rights to resistance but as their supplements. The other direction is the pluralisation of counter-rights which Menke defines in a unitary manner. Counter-rights will need to be developed with a high degree of variation if they are supposed to overcome motivation constraints in various media of communication.

International law often fails to regulate cross-border affairs due to a lack of consent or pace among the states. As a consequence, transnational governance arrangements, which are established by contract mainly among non-state actors, step in to fill the gap. The arrangement that allocates domains on the Internet offers the most sophisticated example to date. This chapter argues that a new approach to the horizontal effect of constitutional rights may both account for the emergence of such arrangements and offer a solution to the problem of their legitimacy. According to this understanding, constitutional rights at the same time enable and restrict transnational regulation. In this way, they guarantee a comprehensive protection of freedom under conditions of globalisation. As long as transnational governance arrangements are not able to generate constitutional rights of their own, however, the national legal orders must complement them. Hence, the legitimacy of law in world society may only be ensured through a dialectical process of internal and external constitutionalisation, resulting from the interaction of its various constituents.

The aim of this chapter is to explore how our ideas about the economy and the market shape the way in which we think about the law, as well as how ideas about the law condition our understanding of what the market “is” and what it “needs”. I argue that legal and economic discourses share a set of fundamental pre-understandings as the relation between the subject of the legal-political order and the social whole. These shared pre-understandings ensure that the law and legal discourse tend to support, rather than subvert, the tenets (if not the particulars) of socio-economic organisation. However, by uncovering this entanglement, we unearth a potentially subversive role for the law. If law and legal discourse succeed in unsettling the shared pre-understandings, and offer alternative imaginaries as to the role of the law in society, they may become a trigger for a broader social transformation.

In the first part of the chapter, I develop a theoretical account, arguing that different economic, political and legal discourses converge around shared, and historically determined, pre-understandings (social imaginaries) as to what constitutes the socio-economic whole, who can act on it, and how. I further elaborate this argument by exploring the transformations of private law as a response to different imaginaries of the economy, politics and society in the last two centuries. In the second part, I turn to European private law to show how a new socio-economic imaginary enters and settles in European consumer law and policy – exposing both the conduits and the contingency of this transformation. I conclude by discussing some of the important impacts of the new socio-economic imaginary on European private law.

This chapter examines the law of extractive resources and money to clarify law’s constitutive role in political economy and, in particular, its implication in the expansion of exploitation. It also indicates how at various past junctures certain legal institutions have been chosen over possible alternatives. It, thus, draws attention to the “institutional toolbox” available for identifying ways in which law may re-configure and transform political economy. More specifically, the chapter explores the distributive effects that law generates - by allocating jurisdiction and exploitation rights, as well as by submitting distribution conflicts either to resolution through political procedures or market mechanisms. It explains how the principles of permanent sovereignty over natural resources and monetary sovereignty provide the basis not only for domestic, but also for international politics to be conducted in the legal framework of international organisations (international commodity agreements and the IMF). The chapter proceeds to trace how the assertion of government control over natural resources led to the expansion and proliferation of markets, not only because it prompted the emergence of a transnational economic law, but also as it contributed to the reverse integration of the industry and consequent changes in the structure of commodity trade. The chapter points to linkages between resource extraction and trade on the one hand and the demise of Bretton Woods and liberalisation of capital markets on the other hand with the effect of further reducing the scope for politics. Finally, it proposes to take a closer look at monetary design both as a driver of extraction and as a potential means to contain exploitation.