Our narrative is rooted in historical analysis but is of vital contemporary relevance. Ernst-Joachim Mestmäcker and Rudolf Wiethölter are celebrated protagonists of the post-war German academic generation and, as such, are each obsessed with the “proprium” of law. Conceptually-rooted in the ordoliberal tradition of Franz Böhm and Walter Eucken, on the one hand, and in the living constitutionalism of Hermann Heller, on the other, Mestmäcker and Wiethölter have consequently trod very different paths in their treatment of economy and society within the legal-constitutional perspective. We are clearly partisan in our allegiance, yet, in recalling the efforts of Mestmäcker to defend the legal co-ordination of the economy within a pre-political “order freedom” (Eucken), and the contrasting endeavour of Wiethölter to picture the political administration of the economy, as well as the “law-(justification)-making” of its societal law, we are reminded of the naïvety of utopian notions of market constitution, but also of the corresponding difficulties (paradoxes) of political socialisation processes that are mediated by the law. In a contemporary context of European financial and sovereign debt crisis, we find that one of the primary victims of naïvety and complexity is the proprium of law itself, which seems to have run out in the subsuming of economic theory within European law, and which can surely only be re-established with great difficulty through the, as yet to be established, relationship between a societal European law and the emerging grassroots politics of progressive European peoples.

In his chapter, Stefano Giubboni endeavours to show the reasons why, starting from the end of the 1980s, the “external” dimension of the functional autonomy of social law in Europe has gradually experienced a seemingly irreversible crisis due to a deep transformation of the political economy of the European integration process and, following the Treaty on European Union (TEU), of the economic constitution of the European Union. In the last decade, such crisis has worsened due to the transformation of the EU and its Member States into, respectively, a strong Liberalisierungsmaschine and Konsolidierungsstaaten – as Wolfgang Streeck evocatively described such process. In the final section of his chapter, Giubboni argues that, in as much as it is impossible to have a common set of fundamental social standards and a unitary welfare state at European level, an almost unavoidable response to the legitimacy crisis affecting the EU consists in giving back to Member States a higher degree of autonomy and “social sovereignty”.

A panoptic overview of current governing practices evidences an expansive role of private regulation in a significant range of crucial public policy issues. Whether at the domestic, regional or global levels, such a phenomenon has increasingly become perceived as a conundrum, if not an overall crisis, for modern paradigms of legal and political authority. Building upon the array of case studies that the phenomenon has already elicited, this paper advances four interrelated arguments. First, descriptively, it contends that the administrative state has experienced a large-scale transformation due to the proliferation of a varied, multifaceted and fast evolving range of private regulatory practices. Second, methodologically, after mapping the way these private regulatory practices have been conceptualised in post-national legal theories, it conveys the importance of moving beyond the state of the art by adopting a phenomenological approach to contemporary legal orderings. Third, drawing upon comparative analysis of competition law, it distinguishes two broad models that have emerged to address the private regulation phenomenon: (i) the private ordering model, predominant in the US; and (ii) the private police powers model, predominant in the EU, which, I claim, could be productively understood from a doctrinal perspective as an emergent private administrative law. Finally, at a normative level, I conclude positioning such a private administrative law model as a distinctive conceptual framework to reflect upon the place, role and the very significance of law within a landscape of contemporary political economies characterised by an expanding topography of private regulators.

Data-driven approaches to environmental governance, such as those promoted by the planetary boundaries concept, permit the rapid circulation of actionable information on environmental performance through transnational networks operating within the political economy. Some of the most promising approaches emerge from structural cuopling between science and economics, largely bypassing law and politics, and operating in cognitive, rather than normative, terms. Yet a purely cognitive global ecological law, offering no possibility of stabilisation of expectations, would ultimately be ineffective. I argue that a role for law emerges if the normative dimensions of the condensation of complex scientific insights into metrics with a high degree of resonance in the political economy are taken seriously. Law must do more than transduce scientific data into metrics, as though scientists have unmediated knowledge of Earth systems. Rather, the normative dimensions of scientific knowledge-production, notably in processes of judging, arguing, and persuading, create opportunities for the development of norms governing the processes of condensing and translating scientific knowledge of ecological risk into signal of economic risk. As Bruno Latour argues, responses to ecological crisis ought not to be conceived of as a new form of jus naturalis, containing norms and standards dictated directly to humankind by the non-human world; instead, what is required is a jus gentium that accepts the unknowability of the non-human world, and the mediated – and therefore highly normative – channels through which knowledge of that world is derived.

The legal system undergoes again a deep process of transformation that may be attributed to the emergence of the “society of networks”. The earlier transformations that took place in the “society of organisations” were centred around the organisation as a kind of “big individual” that was and still is able to aggregate and manage long chains of actions as opposed to the individual subject whose action was rule oriented and followed established patterns of experience. The “society of organisations” was characterised by the rise of all kinds of social norms (standards), organised generation of knowledge, and practices of “balancing” that the multiplication of long chains of action have made necessary. The “society of networks” leads to more complex processes of knowledge generation and tends to create new “quasi-subjects” that follow mobile project-like patterns of co-operation. They are focused on “high knowledge” that is involved in permanent processes of self-transformation. The emergence of “data driven technologies” that do not follow stable trajectories is paradigmatic. It is a challenge for the legal system if what the new loosely aggregated quasi-subjects of the “society of networks” do is “surfing fluid reality” (Bahrami and Evans). This evolution finds its repercussion in new challenges for the regulatory state and also for contracting practices in private law. “Serial law” might be a new paradigm of law that “reads” processes of change in real time and experiments with forms of co-ordination that refer to learning processes.

Over the last century, North Atlantic legal intellectuals developed the philosophical, doctrinal and institutional tools which strategic actors use everyday around the world to press their interests, defeat their rivals, and consolidate their gains. At the same time, however, they promoted ideas about law in global affairs which make it difficult to see law’s constitutive role in the global distribution of wealth. This chapter explores the interactive history of these two innovative strands before offering an alternative approach to law in global affairs which foregrounds law’s role in political and economic struggle ather than its promise of order, its distributional impact rather than its peace-building or humanitarian potential.

This chapter explores the democratic promise of “democratic governance” and finds it to be a lie. With a particular emphasis on how the economic system has cut itself adrift from legal regulation and, in the process, re-configured its relationship to the law under the sign of “governance”, we explore the logic of a key substitution: the market principle that was understood as the principle subtending the transactional nature of private law as distinct from public law, gradually becomes the arbiter of the separation itself and guarantor of the circulation (“balancing” in the preferred idiom) of public goods. Governance is imported to lend a vocabulary to these significant shifts, celebrated by its exponents as signifier for plasticity and “experimentalism”. The chapter explores the suggestion that governance might be thought of as an “empty signifier”, in that it performs a function that is typically “hegemonic”: it immunises itself by absorbing and re-defining (across its semantic range) any opposition to it. Through a series of substitutions, it performs a self-referential operation that has internalised all its criteria in order that governance be able to define for itself what is democratic about it.

The law of political economy is a contentious ideological field characterised by antagonistic relations between scholarly positions which tend to be either affirmative or critical of capitalism. Going beyond this schism, two particular features appear as central to the law of political economy: the first one is the way it epistemologically seeks to handle the distinction between holism and differentiation, i.e., the extent to which it sees society as a singular whole which is larger than its parts, or, rather, as a mere collection of parts. Different types of legal and political economy scholarship have given different types of answers to this question. The second feature of the law of political economy is the way in which it conceives of the relation between hierarchical and spontaneous dimensions of society, i.e., between firms and the market, or between public institutions and public opinion. The two distinctions can, however, be overcome through a third-way, emphasising the strategic role of law in mediating between holism and differentiation and hierarchy and spontaneity. This is demonstrated through a historical re-construction of the evolution of corporatist, neo-corporatist, and governance-based institutional set-ups of political economy.

The book begins with three paradoxes of Libya, Venezuela, and Congo that juxtapose the profound importance of nationalization in the global natural resource economy with its economic risks and potential costs. The chapter then previews the answer to the puzzle of operational nationalization: when faced with the choice of nationalization, weak rulers discount the long-run costs of state intervention to seize its short-term gains; by contrast, strong leaders maintain the status quo of privately run operations to ensure long-term gains from private production. Next, the chapter illustrates the relevance of nationalization in a variety of research contexts: the effects of state intervention in the market; the roles of domestic leadership and international conditions in institutional choice; the significance of this choice during state formation; and the logic of the predatory state. After briefly introducing the theory of how, why, and when different operational nationalization pathways matter for politics, the chapter concludes by outlining how the remaining chapters of the book explain and test the operational nationalization theory.