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.

The European Legal order, created by the European Court of Justice [ECJ], is an astonishingly effective treaty enforcement system. Previous explanations of its ‘transnational’ or ‘constitutional’ development have focused on the politics of judicial networks, and the wider political and economic context of postwar European democracy. Judicial biography has been almost entirely overlooked, even in the case of Robert Lecourt, widely acknowledged as the leading judge in the Court’s revolutionary period. Unknown to research on the ECJ, however, Lecourt had already spearheaded the adoption of the famous Article 49-3 of France’s 1958 Constitution. This paper demonstrates that the constitutional doctrines of European law and Article 49-3 were in fact premised on a similar ideology, that the pursuit of ‘effectiveness’ may require unprecedented restrictions on the traditional law-making role of national parliaments. Those were the constitutional values of the judge that, more than any other, built the foundations of the European legal order.

This article examines how European Union (EU) arms control measures are tailored to its constitutional foundations. EU Member States subject shipments of arms and components to controls so as to screen them for risks and potentially block them. In this context different Member States may make different geopolitical and humanitarian risk assessments. Existing EU measures have achieved only limited security screening harmonisation, and have left room for Member States to shirk their obligations under international humanitarian law. But in case of joint arms production, which the EU subsidises to become more autonomous, one Member State’s arms controls may block another State’s exports and thereby jeopardise cooperation. This article posits that any reform of EU arms controls should start by re-evaluating their present legal basis. A constitutional competence analysis shows that controls on arms shipments to non-EU states should be regulated in part through the Common Commercial Policy (CCP), and not just through the Common Foreign and Security Policy (CFSP). This would be consistent with other EU regulatory regimes for trade security. While a joint CFSP-CCP approach cannot fully prevent conflict, since this would require further foreign policy harmonisation, it could help foster security convergence and strengthen humanitarian due diligence mechanisms.

No cooperative scheme in EU law has displayed bigger tensions between mutual trust and fundamental rights protection than the EAW system. Despite the requirement developed by the CJEU for national courts to trust each other and recognise each other’s arrest warrants, the reality on the ground has shown high levels of distrust between national courts regarding Member States’ alignment with core EU values. In this contribution, we analyze how the CJEU has managed such tensions in the EAW system. To that effect, we first put the Court’s EAW case law into context by examining the broader language of mutual trust used by the Court in other fields of EU law. In doing so, we point out how the Court has espoused different levels of lawful distrust to be exercised in different circumstances under the scope of application of mutual trust. Given that broader context, it is contradictory for the Court to mainly view mutual trust as a requirement rather than a reality in need of permanent and continuing justification between national authorities. The latter conception of mutual trust is more apt to be the basis of EU horizontal cooperation, which must be value-based and sincere according to the Treaties. Therefore, we propose a bidimensional account of mutual trust as a legal principle, one that accommodates both trust and distrust as tools for managing the uncertainty and dynamic nature of trust-based cooperation. Finally, we explore how such account of mutual (dis)trust can be concretised by the Court and other political institutions.

The article analyses the book Economic Constitutionalism in a Turbulent World edited by Skordas, Halmai and Mardikian, criticising the assumptions of societal constitutionalism and ordoliberalism on which it is based. The book concurs with the view that the current crisis of global legal institutions cannot be tackled going back to Nation States. Such an assumption seems to be inspired by societal constitutionalism à la Teubner. In contrast to traditional constitutionalism, which hinges on the dichotomy between constituent and constituted power, societal constitutionalism assigns a central role to independent institutions, whose main function is to avoid any hegemony of one social sub-system over another, in particular of politics over economics. The limit of societal constitutionalism lays in its assumption that the economic sub-system has its own rationality that the political–constitutional system can only irritate, taking for granted that the paradigm of that economic rationality is the one established after 1989, thus implicitly adhering to the neo-ordoliberal vision and legitimising its absolute immanentism. Coming to the materiality of the issues underlying the book, most of the contributions conceive globalisation as an engine for the increase of global prosperity. This confidence rests in the Ricardian theory of comparative advantage. However, the latter is valid only under condition of restrictions on the movement of capital. Another assumption made by several contributions is the theory of the varieties of capitalism, according to which individual models of capitalism tend to stabilise around certain production regimes whose key actors are large firms and business associations. According to an alternative, neo-Kaleckian paradigm, there is no natural convergence of the actors of the economic system towards a mutually beneficial institutional set-up, and it is quite unlikely that, without the external intervention of politics, the system can return to equilibrium.

In this Article, I show how Danish reception of EC/EU law has been shaped by Nordic law and the connections between Danish and other Nordic jurists in a triangular system of social arenas. The purpose is to show in a concrete case that understanding the history of EU law in Member States requires us to engage increasingly with its connections to transnational legal orders and social structures that are older and different to the EU. In this, I aim to contribute to a history and sociology of EU law that puts its contingency at the forefront and removes EU from the main stage. The Article is based on the archives of the Nordic Jurist Meetings, a triennial conference of Nordic jurists dating back 150 years. I contextualise the debates with contemporary developments in the reception of EC/EU law within Denmark. I argue that Nordic law has played a special role in the history of EC/EU law in Denmark, as a source of reciprocal legitimation between the legal elites of the five Nordic countries. Whereas the Danish legal elite first believed in synergy between Nordic and EC law, the increased use of EU law to challenge this very elite during the 1990s onwards made them see Nordic law as in a principled, values-based opposition to European law. I argue that engagement in Nordic law has shaped Danish jurists’ perception of EU law, just as it has been mobilised in a defence of the Danish legal order against EU law.

Digital Constitutionalism makes sense. We can all see the problem it tries to solve. And like many other ‘constitutionalisms’, Digital Constitutionalism is a project fuelled by the institutional hope of striking a power equilibrium between competing actors. In seeking this equilibrium, however, important assumptions are made and serious questions are oversimplified.

Firstly, Digital Constitutionalism ignores the production logics of digital technologies thereby mistaking ‘objects’ with ‘subjects’. Secondly, Digital Constitutionalism’s myopic lenses lead to narrations of ‘constitutional moments’ caused by digital powers and digital revolutions, separate from the histories of private corporations in the global stage. Finally, Digital Constitutionalism falsely implies the absence of law rather than its presence – or indeed irrelevance – as major causes of this ‘constitutional crisis’. On this account, it seeks to respond to the ‘digital revolution’ with a ‘legal revolution’.

Against this background, this Article invites legal scholars to look back to think differently, and to engage critically with the long evolution of legal regulation that has enabled the emergence of the corporate form and the consolidation of economic and political power on the global stage. This historicisation may ultimately lead us to turn inward and reflect on the role of legal experts and professionals in the political economy of technology. It may even inspire us to break free from restraining mental maps and thinking patterns and to unlock novel intellectual and methodological pathways in the field of Law and Technology.

And if it takes a Digital Constitutionalism to come to this, it will have been worth it.