How does ‘Europe’ cope with its dark past and how does it handle its internal conflicts and contradictions? This is the question at the heart of Christian Joerges’s 600-page opus magnum Conflict and Transformation – Essays on European Law and Policy where he advances his reconceptualization of EU law as a particular form of conflicts law as his answer. But the problem constellation the EU is faced with in today’s world is well-beyond what can be encapsulated by a conflicts law perspective. As an alternative the idea of transformative law is introduced and its potential for acting as a basis for the reconceptualization of the EU legal order discussed. Joerges’s oeuvre moreover has a blind angle, as it is internalistic in nature. But rather than internal forces driving the integration project forward the structural trigger and driver of European integration should rather be found in the reconfiguration of Europe’s relations with the wider world. From (de-)colonialisation to todays ‘fragmented globalisation’ it is the structural reconfigurations of Europe’s relationships to the rest of the world which is the central driver of the integration process.

Much existing social commentary and scholarship around the regulation of the European digital economy is focused on how societies could better regulate that economy and its associated harms. Such analyses often portray a problematically viewed order as ungoverned, or not effectively governed, by law. Instead, I argue for more (re)descriptive analyses on how our pre-existing legal structures powerfully create order in the European digital economy. I explain why we should explore the productive connections between pre-existing European legal arrangements and socio-technical order, and discuss what such exploration could entail. The article covers three complementary ways in which legal arrangements are productively connected to sociotechnical order: as tools of ordering to address problems and promote values; as tools that can also enable projects unintended and unforeseen by policymakers; and as constitutive of technologies and other forms of order. It provides concrete examples of these productive connections from various contemporary struggles within the governance of the European digital economy. I argue that focusing on the analysis of productive connections may shed light on how pre-existing legal arrangements are baked into and shaped by the European socio-technical order. As the current order of the European digital economy is characterised by massive inequalities, these analyses can also direct our attention to how our pre-existing legal arrangements can produce and reproduce inequalities and oppression. Analyses of pre-existing legal arrangements might produce different attributions of responsibility and possibilities of contestation than analyses of legal deficiency.

Consumers have in law been defined as the weaker parties in a transaction. Contract laws have integrated consumer protection with a view to balancing the interests of the parties, ensuring equal bargaining power and to some extent substantive fairness in contractual relations. Rules of consumer protection have therefore, from a contract lawyer’s perspective, been construed as expressions of a general principle of equality. The principle of equality, conceived in this way, complements the general principle of autonomy underlying contract law, which embodies the idea that parties should have the capacity for self-realisation. Does this construction of consumer contract law still hold in EU consumer markets transformed by the rise of online platforms and the overall move towards an economy based on services and experiences rather than the sale of physical goods? Or do we need to redefine the ways in which the principle of equality is expressed in European contract law in order to correct for new inequalities arising between consumers and businesses? This article aims to answer that question against the backdrop of established insights of the ways in which the rationality of European contract law differs from that of national, doctrinal private law systems. It concludes that the rules laid down in instruments such as the Unfair Commercial Practices Directive (UCPD) and the Unfair Contract Terms Directive (UCTD) can protect consumers against exploitative practices. However, problems arise in cases where the interest at stake go beyond economic interests and concern also non-economic interests, such as data protection or freedom of expression, or do not have a market exchange value. Solutions can be pursued, it is submitted, by the European legislator and the European Court of Justice, potentially using the EU Charter of Fundamental Rights as a catalyst for reform.

Interactions of global change science, business and policymakers play a crucial role in shaping today’s regulatory frameworks for corporate sustainability. Our research question is why sustainability might actually be undermined by the ways that some prominent interfaces are informing corporate sustainability. Concentrating on ‘science-based’ initiatives that prescribe quantitative target-setting, business-driven task forces that define frameworks for businesses to assess and disclose information on strategies and targets, and the European Union (EU) as a supranational policymaking power, we scrutinise concepts, debates and developments involving these three globally influential non-state actors.

Although the conceptualisation of sustainability as a safe and just space is well established in academic and policy contexts, key premises are being lost in translation at science–business–policy interfaces, delaying or actually deflecting regulation of business. We call for science–business–policy interfaces to conceptualise corporate sustainability as business contributing to mitigating planetary biophysical pressures and securing social foundations worldwide. In this context, we argue that the research basis for ‘safe and just’ cannot be reduced to simplistic and separate quantifications. Treating global sustainability goals as an itemised checklist for business action, and using scientifically narrow and overly reductive approaches to quantification and target-setting, fall short of this systemic understanding of corporate sustainability.

The recognition of risks of unsustainability and the desire for sustainable value creation can act as drivers for change. Paradoxically, today’s business concept of ‘sustainable value’ actually undermines the potential for transformations to sustainability, and the dominant finance-driven treatment of ‘sustainability risks’ fall far short of capturing the hazards of continued unsustainabilities. In examining what the EU is actually doing, we find that the EU’s unprecedented attempts at regulating business for sustainability are being thwarted through powerful lobby interests, the outcomes of the science–business–policy interface, and the EU’s own fixation on economic growth and finance.

Sustainability involves dealing justly with today’s unsafe conditions, and dealing safely with unjust conditions. This requires radically more innovative responses from business, truly sustainability-oriented adaptive leadership from policymakers, and critically reflexive transdisciplinary engagement by a much wider range of sustainability scholars.

This review essay forms a contribution to the Dialogue & Debate symposium on Christian Joerges’s volume Conflict and Transformation (Hart 2022). The specific angle of this article is an interdisciplinary one that conceives of Joerges’s work as a boundary-crossing exercise between law and the social sciences. Aspects highlighted are the inspiration that his work finds in responding to Europe’s vocation, or realising the latter’s normative potential; the law-in-context quality of the approach, which combines inside and outside perspectives on what the law is and does, how it motivates and what it means; and the two-pronged ambition to take the law seriously as a legitimating force and to question, at the same time, the power of economic ‘facts’ and arguments, which sometimes overrule what seems legitimate. Moreover, this article considers the relevance and implications of two intellectual influences on Joerges’s work, one a more formative one (Habermas) and one resonating with recent experiences of crisis (Polanyi), and it follows the journey of Joerges’s reconstructive approach within European studies: between integration theory, governance approaches, and rethinking democracy in postnational constellations. As Joerges himself concedes, the normative vision that this yielded for European law and politics was overtaken by actual developments in the context of the monetary union, and conflicts-law constitutionalism became more of a counterfactual appeal. This article outlines how the critical edge of this approach could be enhanced by taking perspectives from critical political economy on board, which would also facilitate countering economic arguments.