The Introduction sets the scene by describing the relevance of the idea of a symbiotic relationship between competition and democracy in the history of competition law and the contemporary policy debate. It identifies the gap in the literature, explains the research question and the purpose of the book, and presents the argument of the book in a nutshell. It starts with the observation that the idea of a link between competition and democracy is a recurrent theme in US and EU competition law. However, existing scholarship has so far struggled to clearly explain what the relationship between competition and democracy actually consists of. This knowledge gap is filled by this book which provides a clear, conceptually sound, and surprising answer to this research question. It argues that the idea of competition–democracy nexus is grounded in a republican understanding of liberty as non-domination which can be traced back to the political thought of the Ancient Roman republic and fundamentally differs from our contemporary negative concept of liberty as non-interference. The purpose of the book is to demonstrate how this republican concept of liberty explains the idea of a competition–democracy nexus in US and EU competition law.

This chapter introduces the idea of a competition–democracy nexus as the object of inquiry of the book and traces its intellectual trajectory across six centuries of legal, economic, and political thought. It shows how early manifestations of the idea of a competition–democracy nexus (competition–democracy nexus 1.0) took shape in the late 16th and early 17th century with the critique of monopoly by Thomas More, the early common lawyers and the English Leveller movement. It also recounts how early liberal thinkers, most notably Adam Smith, James Steuart and Montesquieu, celebrated the advent of competitive markets as a driving-force behind the transformation of the feudal order into a republican society. The chapter also analyses how the idea of a competition–democracy nexus (competition–democracy nexus 2.0) lay at the origin of US antitrust law and had an important bearing on various antitrust paradigms until the 1970s. The chapter further describes the emergence of the idea of a competition–democracy nexus as the central tenet of the German Ordoliberal School before and during the Second World War and its influence on the early days of EU competition law (competition–democracy nexus 3.0).

This chapter explores how different proponents of the idea of a competition–democracy nexus envisaged the opertationalisation of the twin-goal of republican liberty and democracy through the protection of competitive markets as an institution of antipower. Various republican antitrust paradigms shared the idea that competitive markets operate as an institution of antipower that maximises liberty as non-domination and promotes republican democracy as long as they diffuse economic power polycentrically amongst a multitude of independent economic agents. Based on this assumption, all iterations of the competition–democracy nexus saw the role of legal rules and, most notably, competition law as securing a polycentric and deconcentrated market structure. The various republican antitrust paradigms also envisaged different ways through which competition law can guarantee and preserve polycentric competitive markets. These design approaches can be largely divided into two categories: situational and conduct-based structuralism.

This chapter sets the scene for the history of plan-making in the Western hemisphere before, during, and after the Second World War. It delves into four great ideational projects of this period: (1) human rights, (2) the invention of a Christian-inspired liberalism, (3) solving the ‘social question’, and (4) the why and how of ‘mixed economies’. During the period 1937-47, these projects were gradually taken on by the leading politicians, policymakers, and intellectuals of the ‘free world’, as they were considered key for the creation of a more stable and just order, both in the national and in the international sphere. These four projects, moreover, were not only interlinked, but they also shared the overarching outlook of anti-totalitarianism and aimed for what could be called ‘ideational reconciliation’: the merging of the universal and the personal in the UDHR, a transatlantic-inspired ecumene, a combination of the ideologies and economic theories of socialism and liberalism. This produced a myriad of plans and counterplans for institutional structures, (federal) organisations, and policies for post-war Europe.

Chapter 4 reconstruct how the zeitgeist, the political and economic practices, and the geopolitical and societal circumstances of the war times guided Western Europe to a path of deeper international and regional cooperation focused on free trade and valuta convertibility. During exile and occupation, European governments fleshed out plans and schemes for post-war cooperation, primordially in the domains of socio-economic and the financial-economic planning, in greater (practical) detail. Initially, however, the step from grand designs and lofty models for a post-war Western order that could ‘win the peace’ to the practices of policies of cooperation was taken via the institutional engineering in the Atlantic world, most prominently through the ‘system’ envisioned in Bretton Woods. However, the original ideas behind Bretton Woods soon proved a bridge too far in practice, which complicated global ambitions as well as the proper build-up of Atlantic-wide institutions—and pushed Western Europe to think and act ‘beyond Americanisation’.

The concluding chapter of the book summarises the main findings of the present study and puts these in the conceptual and historiographical framework of the introduction of the book. This chapter reconnects to the central question of the present study and shows how and why the developments in the transatlantic management of economic and monetary affairs created decisive political momentum for bold Franco-German (supranational) initiatives in European integration, but also which transatlantic and European ideational and emotional undercurrents co-steered this development. Furthermore, this chapter highlights the increasingly central role of Western Germany in this history.

This chapter is the third and final building bloc of a wider reconstruction of the main economic, (geo)political, and ideational forces that enabled European integration to take off as of the spring of 1950, It describes the practical unfolding of European integration after the Second World War. This part of the book tries to uncover deeper layers (of psychology and belief) in this history through three crucial sub-histories. This chapter deals with the third of these sub-histories. It explains how—against the background of the beginnings of the Cold War and growing British aloofness in European affairs— ‘the (West) German re-entry’ became the driving force in the process of emerging European integration. This development crystallised first in the OEEC, subsequently through the EPU, and finally in the launch of the ECSC. This process was not only political and economic in nature, but also to a great extent intellectual via the deep influence of (German) ordoliberalism in the politics of the FRG and Christian Democracy in Western Europe.

Chapter 1 examines three main historical processes that have framed and provoked my interest in questions of competition. First, the classic problem that has come to be known as ‘the rise of the West’. What caused the rise to global power of Western Europe and its settler societies in the last few centuries? I suggest the domestication of competition must be part of the answer. Second, the domestication of competition is associated with the rise of a particular kind of nation state, the currently dominant model of capitalist liberal democracy. Why is this? And third, does what has come to be known as ‘neoliberalism’ have a special role to play in explaining the current state of competition? One often encounters this idea in critical discussions of neoliberalism, but my argument suggests that the pervasive role of competition in modern society has historically deeper roots, whatever its current transformations.

The chapter analyses the three foundations of the new EU framework for macroeconomic governance, the European Macroeconomic Constitution. The provisions of the Maastricht Treaty stem from a rich background that informs about the content of the provisions and how they were assumed to lead to a successful monetary union. First, the economic constitutional thinking, originally by the German ordoliberal can be considered the philosophical foundation that informs how and why constitutional law addresses economic issues, particularly the monetary order. Second, longer evolution in central banking on one side and development in macroeconomic and monetary theory on the other side form the economic foundation. It informs about the assumption and content of various economic concepts and particularly about the 1990s broad consensus on central banking economics. Third, the institutional foundation is built on the institutional, legal and political development of the Community towards the establishment of the EMU. In the early 1990s, these three foundations happened to meet at the same intellectual crossroads that made EMU possible.

Jurists played a key role in shaping Germany’s political economy in the first half of the twentieth century. Used to thinking in terms of power and its checks and balances, these lawyers contributed to a drawn-out debate about the relationship between state and markets, private business and public interest. Faced with repeated economic crises and political turmoil, they came to agree that corporate power had reached a level undermining economic liberty and the political sovereign charged with its protection. Walking a fine line between liberal thinking and a preference for regulative state power to protect capitalism from itself, these jurists – here exemplified by Franz Böhm and Heinrich Kronstein – identified with the Republic although political loyalties proved changeable. While Böhm remained in Nazi Germany, rephrasing his thinking in line with the regime’s preferences, Kronstein went into exile, where he found a receptive audience among American trustbusters. Yet, on his return to postwar Germany he teamed up with Böhm once again, thereby boosting the political legitimacy of the emerging ordoliberal school and helping bring the long quest for a tamed capitalism to its conclusion.

This chapter details how competition laws have, to date, addressed matters associated with interoperability standards and SEIP. Particular focus is given the essential facilities doctrine. In the United States, the essential facilities doctrine has been abandoned; in the EU, refusal to licence can constitute an abuse of a dominant market position in the relatively narrow circumstances outlined in the ‘exceptional circumstances’ test applied in the Magill and IMS Health cases. Consideration is also given to the law and economics analysis of the relevant laws and practices. It is concluded that the essential facilities doctrine, as applied to interoperability standards and SEIP, would not provide a helpful basis for binding disciplines at the international level because of entrenched differences between leading jurisdictions, as well as its questionable standing in the context of law and economics scholarship. The work also includes discussion and analysis of other applicable principles of competition law in the context of interoperability standards, including concerted practices, fraud or misconduct in the creation of standards, tying, and the somewhat controversial doctrine of excessive pricing.

This chapter explores the political, social, and economic conditions that have shaped the turn to history since the 1990s. Those conditions include the break-up of the Soviet Union and the ‘end of history’ narrative that accompanied a decade of ambitious liberal expansionism, the crisis of liberal internationalism triggered by the war on terror and the financial, energy, food, asylum, and climate crises of the early twenty-first century, and the shift in geopolitics caused by the rise of the BRICS and particularly of China as an economic power. International lawyers in practice and the academy have drawn on past events, practices, records, and cases as argumentative resources in adjudicatory settings and in broader debates over how to understand, justify, or resist the transformation of international law. The turn to history eventually began to be understood as a project that should be distanced from the argumentative practice of international law and measured against the empiricist protocols of academic historians. This chapter returns it to the context of international legal argumentation from which it arose, in order to gain a better understanding of the turn to history as an intervention in present struggles over the meaning of international law.

This concluding chapter argues that the interplay between international law and empiricist history has served to offer a new grounding for formalism in an extremely fraught political context. Historical work is increasingly relied upon as a source of substantive claims about what law really means and of scientific methods for studying the past. Lawyers rely on the scientific tone and resulting truth effects of accounts presented by professional historians to intervene in contemporary debates by using the claims made in those narratives about international law’s ‘true’ origins or ‘real’ history. Appeals to contextualist histories allow lawyers to present their arguments as being grounded on evidence and to characterise the other side in a legal debate as ideologically motivated, presentist, or engaged in myth-making rather than proper scholarship. The chapter argues that international lawyers cannot look to historians (or anyone else for that matter) to save the day with impartial and verifiable evidence-based interpretations of what international law really is, means, or stands for. What then is to be done? The chapter concludes by exploring why and how we might study the international legal past even knowing that writing histories of international law is inevitably a partisan act.

This chapter challenges the claim that historians are able to offer value-free, impartial, and verifiable observations about the history of something called ‘international law’. While numerous historians have criticised international legal scholars for misusing the past to tell stories, draw analogies, or link material from diverse periods, historical work is presented as a process of finding evidence rather than making arguments, committed to reality rather than myths. This chapter argues that histories of international law are necessarily as partisan and political as those produced by the most pragmatic of lawyers. Any study that is described as offering a history of something called ‘international law’, or of a subfield of international law such as international economic law or human rights law, necessarily makes normative and political choices about what international law is and where it is to be found. To show how that works in practice, the chapter explores three empiricist historical accounts that are overtly presented as offering correctives to the distorted, presentist, or incomplete histories of international law produced to date – Lauren Benton and Lisa Ford’s Rage for Order, Samuel Moyn’s The Last Utopia, and Quinn Slobodian’s Globalists.