UNIVERSITY OF HELSINKI FACULTY OF LAW

Justum facere in the Integration Process: How Should the Law Promote the Constitutionalization of Europe?

CHRISTIAN JOERGES

LEGAL STUDIES RESEARCH PAPER SERIES Paper No 23

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Justum facere in the Integration Process: How Should the Law Promote the Constitutionalization of Europe? Christian Joerges Section I: Theoretical Framing, Guiding Questions and Structuration The state of the European Union is at present deplorable.1 The need to explore the reasons for the current crisis is irrefutable, and a new debate on the prospects of the integration project is urgent. The challenges which this situation entails for legal scholarship are very considerable indeed. In the formative era of the then European (Economic) Community the study of European integration was essentially in the hands of legal academics. It was not only entrusted to those who believed in the autonomy of legal doctrines, but also to scholars who, like, most notably, Joseph Weiler, suggested that European integration would rely upon, and be promoted by, law.2 This kind of confidence has been weakened. For quite some time now, political science has clearly dominated European studies and the quest to take the law seriously does not find general resonance in the social sciences (see Joerges 1996). To be sure, there is no trend without certain exceptions. One particular ambitious project, namely the plea for a European Constitution, has become the focus of intensive research and much inter- and trans-disciplinary debate. With the failure of this project, however, a major lacuna in academic research became apparent. This was, namely, the difficulty of coming to terms with the political economy of an ever more diverse Union and the benign neglect of economy and society in European constitutionalism: the failure to consider the constitutional dimensions of the economic order, which was complemented by the failure to link democratic aspirations with concerns for social justice (see Joerges 2010). This has led to a stunning silence amongst legal researchers in face of the current crisis, and it is not yet apparent when and how European law scholarship will move beyond the paralysis, which this crisis has caused. This chapter strives for a re-orientation. Its focus will be on the role of law in the integration project, on its accomplishments and its failures. Its analyses and deliberations will operate on three levels. They will be historical in that they seek to

1 The draft version of this paper was presented at the 3rd Annual Conference of the Centre of Excellence on Foundations of European Law and Polity on 15-16 September 2011 in Helsinki, and at the conference The Historical Sociology of Law and the Formation of Europe, held on 4-5 November 2011 at the University of Copenhagen. I profited from the discussions at both events. Particularly useful were the comments of Kaarlo Tuori (Helsinki), Mikael Madsen (Copenhagen), and the many suggestions made by Chris Thornhill (Glasgow). Furthermore, I also benefited from the critical responses of Rainer Forst (Frankfurt am Main), and Jrgen Neyer (Frankfurt an der Oder), to my discussion of their work. Last but not least, I would like to thank Chris Engert, Florence, for his sensible help with my use of his language. 2 See the seminal series of studies by Cappelletti, Seccombe and Weiler (1985-87). For recent reflections on this legacy see Augenstein (2012: chapter 6).

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understand legal developments as responses to the dynamics of the integration process; they will build upon political science and economic sociology in the reconstruction of this process; the legal conceptualizations and normative suggestions will try to take these historical contexts and theoretical assumptions adequately into account. The argument is an exercise in critical legal thought of a specific kind.

The discourse theory of law and historical sociology [W]e are accustomed to consider law, the rule of law, and democ racy as subjects of different disciplines: jurisprudence deals with law, political science with democracy, and each deals with the constitutional state in its own way jurisprudence in normative terms, political science from an empirical standpoint (Habermas 1999: 253). Habermas (1999: 254) explains how this schism came about and then raises objections to it on both normative and theoretical grounds. In the constitutional state as we know it, he argues, a separation of the rule of law from democracy has become inconceivable; an internal relation between the two has been established which results from the concept of modern law itself. The lines of debate between normative and historical-sociological accounts of state legitimacy are fundamentally polarized. Normative analysis [] sees legitimacy as the attribute of a political system able to provide rationally generalized justifications. [] Historical sociological analysis focuses on the factual aspect of legitimacy (Thornhill 2008: 165). Constitutional sociology as developed and defended by Thornhill does not subscribe to the linking of prescriptive arguments and analytical observations, with which Habermas s discourse theory of law and democracy seeks to respond to the disciplinary schism between legal and political science. There are nevertheless affinities. Habermas anchors his constitutionalism in historical reconstructions while Thornhills historical sociology seeks to stay in contact with the facticity of the normative and even claims the potential to indicate that deviation from certain constitutional norms (for reasons that are not normative but sociological) might be undesirable and might jeopardize the basic resources and structural form of society (Thornhill 2011: 376).

In all of these dimensions, the following deliberations and arguments are indebted to Habermass discourse theory of law in general and also to his contributions to the debate on the constitutionalization of Europe (See Ungureanu, Gnther and Joerges 2011: xi-xxi). However, we can hardly invoke Habermass authority for its core messages regarding the problematic question of Europes legitimacy or the state of the law in the current crisis. In

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that respect, Habermas seems to take the socio-economic background of Europes current malaise too lightly, and he falls prey to his normative commitments when claiming that this crisis should and could generate a new constitutional moment.3 The counter-vision of a conflicts-law constitutionalism, which we will defend in the following, is much more cautious. Indeed, it may also prove to be hopelessly unrealistic for other reasons. The risk of such failure is inherent in any attempt to find normatively defensible responses in a state of uncertainty. The questions which we pose and address are: Can Europes crisis turn into a true constitutional moment or does it require a moderation of integrationist ambitions? Does the socio-economic diversity of the old Europe and of the enlarged Europe militate in favour of stronger European powers? Or would Europe be better advised to institutionalize deliberative fora with a view to generating fair solutions to the conflicts and problems which Europes diversity is bound to produce? These queries do not just concern Europes most prominent philosopher on the one hand and a lawyer at the margins of his discipline on the other. They are of general topicality and hence present in many contributions to this volume.

The structure of the argument After President Delors initiated the project of founding an Internal Market, we might have posed the question: Is Europe about to establish a market without a state? After the Maastricht Treaty, given its conferral of exclusive powers in monetary policy and the implications of this new order for the Member States, we might have posed the question: Have the Member States become states without markets? (see Joerges 1996) After the financial crisis, we might now pose the question: What kind of game are the markets playing with the Union and its states? The economy determines our fate, and the constitutional importance of the market, although more opaque than ever, seems by now self-evident. The monetary and economic crisis exacerbates dramatically a further European dilemma: namely, its social deficit. In the intense debates on Europes democratic deficit , the status of the social has remained unsettled. Even though the crisis will not deliver responses to the theoretical background of this query, it is bound to draw increasing attention towards it. In this contribution, the status of the social and questions of social justice in the EU will take centre stage.

These questions will be addressed in four distinct steps.

3 See Section V below.

In the first step (in Section II), we will draw renewed attention to the conventional distinction between domestic justice and justice between autonomous orders. This is not to argue that the Member States of the Union still remain, or should once again become, independent (sovereign) entities. This distinction is nevertheless both deeply anchored in the intellectual legacies of our various legal sub-disciplines, and it is of topical importance for the debates on justice and solidarity in the Union. To illustrate this, the chapter will provide brief reconstructions of two classical positions. Namely, it will reconstruct Friedrich Carl von Savignys conceptualization of justice under private international law (internationalprivatrechtliche Gerechtigkeit), and Hermann Hellers theory of the social state (Sozialstaat).

The second step of the argument (in Section III) will address the threefold challenges posed by the process of Europeanization. That is, it will address, first, the need to abandon justice as defined under private international law as a model to govern the relations between the Member States of the EU; second, the erosion of the social state as envisaged by Heller in the integration process; third, the ensuing efforts to cope with these transformations in a new synthesis. This will be illustrated through reference to the recent debate on justice and democracy in the EU between the political scientist Jrgen Neyer, on the one hand, and the philosopher Rainer Forst, on the other.4 It goes without saying that the lawyer is not equipped, let alone entitled, to act as an arbiter in such arenas. Instead, we will (in Section IV) contrast this debate with observations on the present unruly state of two paradigms of legal integration theory, each of which attempted, in its own way, to establish the legitimacy of European governance. The concluding part (Section V) will present the lesson that lawyers ought, in my view, to learn. This lesson is a radical turn to proceduralization and an understanding of European law as a Recht-Fertigungs-Recht:5 that is, as a law of law production, which provides orientation both for the resolution of conflicts within the European Union and for the machinery of transnational problem solving, which it is bound to establish.

Section II: Two Distinct Worlds of Justice The divide between domestic justice and the normative objectives of the various legal disciplines which deal with the international system is very firmly established. To exemplify different sides of this divide, we will treat in the following, first, a post-classical

4 See Neyer (2010; 2011; 2012). For Forsts comments on this see, Forst (2011a; 2011b; 2011c). 5 For a more comprehensive gloss, see note 40 below.

constitutional theory: namely, Hellers notion of the social state. Then we will treat Savignys classical theory of justice in private international relations.

Social justice in constitutional democracies Can the welfare state survive European integration? This query has figured prominently both on the agenda of European politics and in legal circles for more than a decade. Political unrest was particularly disquieting during the campaigns accompanying the French referendum on the European Conventions Draft Constitutional Treaty. In the proceedings of the Convention, Foreign Ministers Joschka Fischer and Dominique Villepin had sought to respond to anxieties about the neo-liberal bias of the integration project by proposing a Contribution to the Convention, which sought to anchor the notion of the social market economy in the Draft Constitutional Treaty (CONV 470/02). The notion of the social market impressed the Convention, and it was thereafter included in the Treaty of Lisbon.6 However, its impact on the really existing European polity was less significant. Neither the broader political public nor the academic community of European constitutionalists knew, in any great detail, about the legacy of Germanys social market economy ( soziale Marktwirtschaft) (see Joerges and Rdl 2005). They knew far less about the tensions between this notion and the social legal state (sozialer Rechtsstaat). The unspecified public scepticism had nevertheless its fundamentum in re, and the same applies to the difficulties encountered by Europes legal academia in integrating the concern about the problematic question of the social state into their discourses on the constitutionalization of Europe.

The reference point for analysis of the social market in German domestic constitutional debate is the social-state clause contained in the Basic Law, which is protected against amendments by the eternity clause of Article 79 (3).7 Carlo Schmid, the main representative of the Social Democratic Party amongst the drafters of the Basic Law, instigated this during deliberations on the Basic Law. In so doing, he attempted to give positive validity to the theoretical position of Hermann Heller who (like Schmid himself, a leading Social

6 The social market had not yet appeared in the first draft of the Convention (CONV 528/03), was then accepted only pr ovisional until it was transformed into the highly competitive social market economy of CONV 797/03 and Art. 3(3) TEU. 7 Article 20 (1) states: The Federal Republic of Germany is a democratic and social federal state. Article 79(3) states: Amendments to this Basic Law affecting the division of the Federation into Lnder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.

Democratic constitutional theorist) had been Carl Schmitts most resolute opponent during the heated constitutional debates of the Weimar Republic.8

What kind of positive validity can such constitutional commitments to social justice claim, and what orientation do they provide? The first grand constitutional debate in post-war Germany, now possessing legendary status, addressed these issues. At the centre of this was a controversy between Ernst Forsthoff (a conservative disciple of Schmitt) and Wolfgang Abendroth (a constitutional lawyer, on the left of the Social Democratic party). In an influential essay, Forsthoff argued that it was simply impossible to reconcile the promise of social justice with the requirements of the rule of law (1954). Abendroth countered this by asserting that the Basic Laws commitment to the welfare state (Sozialstaatsgebot) had the status of a binding legal principle (1967 [1954]: 118). The debate is regularly recalled to this very day (Eberl 2009). Common-law lawyers tend to regard it with some methodological embarrassment:

In addressing the wider issues of democracy, we are taken beyond the political sphere to engage with the social and economic organization of society. Once we move in this direction, agreement about the nature, scope and content of democracy becomes very contentious. [] By bringing the idea of 'social' into the frame, we then begin to address the wider issues by incorporating the social and economic aspects of society into our understanding of democracy. However, as this involves making normative claims in relation to democracy, it is widely felt that this stretches the understanding of democracy too far (Burchill 2004: 186).

Both lawyers and philosophers operate outside the limits of their expertise if they attempt to substantiate their understanding of democracy by incorporating social and economic concerns into their legal reasoning. Herman Heller was well aware of these difficulties. This is why he insisted on democratic procedures and legislative autonomy. Social justice, for Heller, is not pre-defined by the constitution. Rather, democracy entails the mandate to define social justice and the chance of accomplishing the politically defined objectives.9 On this reading,

8 For relevant writings, see Heller (1971 [1928]; 1930). Hellers oeuvre has attracted attention in the AngloAmerican world (see Dyzenhaus 1997: 161 ff). 9 Contrast this with the debate, which reviewed in Forst (2007: 270 ff). Our reference to social justice remains philosophically vague. This is because at issue here is not a philosophical theory of justice; we are concerned

Hermann Heller paved the way for a proceduralized notion of justice in constitutional democracies.

Justice under private international law among civilized nations in the international law community If we conceive of social justice as an outcome of democratic processes, it will be shaped by political contest, historical experiences and contingent events. Historians may assure us that post-war Western European democracies share a commitment to welfarism, but political scientists will add that the patterns of these commitments diverge,10 and that their harmonization is practically inconceivable (Scharpf 2002). How, then, should a comprehensive European Social Model come into being? An additional difficulty for all those indebted to the legacy of Hermann Hellers constitutionalism stems from the linkage between social justice and democratic processes. This problematic question has even older and deeper roots than the technocratic, as opposed to democratic, foundational moment of the European Economic Community. It originates in the categorical difference between internal and external affairs: that is, in the taming of the Political by nation-state constitutionalism, on the one hand, and the unruliness of the state of nature in the international system, on the other. The relevant legal disciplines have conceptualized these differences quite rigidly. Beyond its recognition of commitments undertaken in international treaties, international law was far from enthusiastic about affirming interference in the economic and social affairs of the sovereign entities which constituted it. Private international law became considerably more ambitious with Savignys seminal treatise of 1849.11

In what has been praised as a Copernican turn, Savigny developed the vision of a truly transnational legal order of private law relations which depended, not on the uniformity of substantive rules, but on the readiness of courts in all spheres of jurisdiction to apply the legal order in which these private legal relationships were situated. Private international law was not intended to strive for substantive justice, but for uniformity of d ecision making, which would be generated by the acceptance of rules able to identify, through a deliberately blindfold test, the seat of a legal relationship (Jessurun dOliveira 1976). This is the distinctive character of the justice which the disci pline of private international law seeks to

with the scope and the means of democratic structuring of economy and society which constitutional law should enable but not determine in substance. 10 See the seminal work on this in Esping-Andersen (1990). 11 For the full argument see Savigny (1849).

promote. Savignys concepts were both revolutionary and realistic. They were revolutionary in the principled separation of private law from the state and its public policy. They were realistic in the de-limitation of the scope of the new principles. The mutual respect of foreign legal orders, their equal treatment, and the toleration of diversity was premised upon an understanding of private law as an un-political order, which was not permeated by public policies. This meant that the application of a foreign order would not affect the policies and interests of a particular state in any significant way (see Vogel 1965: 215 ff).

Savignys premises seem clearly outdated today. But his vision of an autonomous transnational ordering of private-law relationships continues to re-surface in constantly new variations (see Michaels 2007: 119-44). In the EU, it was advocated with particular strength after the collapse of the Soviet Union (Mestmcker 1991: 190). The plea for a return of the private-law society and its legal order was expressly based upon neo-liberal premises and the re-statement of notions of justice which reject any positive commitment on the part of constitutional democracies to social justice. We will refrain here from any closer analysis of this. However, it suffices here to underline the exemplary importance and topicality of the two reference points of this section (Heller and Savigny), and so to rephrase our understanding of the problematic question of social justice and democracy in the EU. Our understanding of this can be formulated as follows. As long as the Member States continue to exist and operate, be it as the Masters or the Servants of the Treaty, any European synthesis of social justice and democracy presupposes a twofold transformation. Any synthesis of social justice and democracy in the EU, in other words, presupposes a re-conceptualization of horizontal relations and commitments between Member States, and it presupposes an embedding of this transformation into a democratization of the Unions institutional architecture.

To rephrase this challenge: Savignys concept of justice as a matter of private international law is categorically different from notions of substantive and distributivel justice. Justice in private international law is accomplished through the application of the law of that jurisdiction, which has been identified as the seat of a legal relationship. The more widely that selection is recognized, the more this promotes legal certainty among the parties to private international transactions. Hellers social state is committed to precisely those understandings of justice which private international law does not pursue. This discrepancy comes to the fore within the Community/Union of European states in the debates on the finalit and legitimacy of the integration project. On the one hand, private international law justice would be a very meager response to the concerns justice among Europes citizens, and it would mark a retreat from the accomplishments of the national constitutional state. On the other hand, social justice, as Hellers democratic constitutionalism envisages it, presupposes societal and political conditions beyond the commitments of the Member States
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and beyond the powers, which they have conferred to Brussels, Luxembourg and Strasbourg. What kind of justice, then, can European citizens expect from the integration project? Is some sustainable European synthesis of private international justice and the dome stic social justice of constitutional democracies conceivable ? If so, how could that be accomplished? These queries, we assert, do not just concern legal scholarship, but the whole of European studies.

Section III: Justice and Democracy: Meta-Disciplinary Irritations The trans-disciplinary importance of the discrepancy between social justice within constitutional democracies and the ordering of the international system which has inscribed itself so deeply in the legal disciplines has recently become apparent in an instructive variant in the debate between Jrgen Neyer and Rainer Forst.12 Neyer, the researcher in European integration studies and international relations, seeks to resolve tensions between European democratic aspirations and the institutional configuration of the integration project by a reduction of European ambitions to a notion of justice (the right to justification), which is meant to complement national democracies. Forst, the philosopher, challenges the dogma of the essential difference between democracy and justice (2011b: 2). The lawyer has no entitlement to act as an arbiter in this contest between the two non-legal disciplines. However, s/he may be well enough equipped to undertake a different type of exercise (in the sense outlined above): s/he may reconstruct the specific perspectives of the various disciplines, and then ask what they can learn from each other.13 This exercise commends itself here because Neyer, Forst, and the present author all share a concern for the legitimacy of the EU, and each of them addresses this problematic question with tools specific to their respective disciplines. But what do the three disciplines bring to that meeting point, and what can they learn when observing their differences?

European Justice and Domestic Democracy: Complementarities Lasciate ogni speranza Jrgen Neyer has argued that democratic legitimacy is unattainable in the EU. The search for a cure to the Unions democratic deficits is focused on incorrect and ill-conceived issues. Instead of this, the EU has the means to promote transnational

12 See Neyer (2011b; 2012). For Forsts comments, see Forst (2011a; 2011b; 2011c). 13 This understanding of interdisciplinarity builds upon the following argument in Kratochwil (2010: 122): [I]nterdisciplinary work [...] presupposes familiarity with the respective disciplines and an ability to translate the respective insights. It also requires an ability to examine critically the blind spots of each discipline by looking at them from the perspective(s) of the other(s).

justice among its Member States and to defend its legitimacy upon the basis of this potential.14 Neyers argument modifies the position proposed in a joint publication with this author as early as 1997, under the heading of deliberative supranationalism (Joerges and Neyer 1997). That notion was meant to provide an alternative conceptualization of the problematic question of the Unions democratic foundation. We suggested that European law had a particular vocation to cure a structural deficit of nation-state democracies: we perceived this deficit as stemming from the fact that nation states failed to include persons in their internal political processes who were externally affected by their policies, so that these persons were, as a consequence, unable to understand themselves as the authors of the acts to which they were exposed. European law, we concluded, needed to be understood and practiced with a view to curing this deficit. It needed to perceive itself as deriving its legitimacy from this potential, and so to structure its interventions accordingly.15 Neyer continues to defend these ideas in fact, he seeks to complement and substantiate them. On Neyers conception, the regulative idea and leitmotif of the ordering of the relations among the Member States of the Union is justice. Justice is meant here, not in the sense of some supranational distributive arrangement, but in the sense of a right to justification ( Recht auf Rechtfertigung), which European law has institutionalized along with other provisions which further the compensation of nation-state failures and co-operative problem solving. The right to justification can be invoked by individual citizens against restrictions of their autonomy.16 This right is not just an individual right. On the contrary, it is a right that encompasses the duty of the community to produce the material conditions under which individual freedom can exist, (2010: 909), and it is required to govern, as the most recent elaboration of Neyers approach clarifies, the relations between the Member States of the Union (2011a: 492). On this basis, supranationalism needs to be understood and re-conceptualized, not as a hierarchical command, but as a horizontal bond between Member States. With its two dimensions as a right of European citizens to insist on justification and as commitment of the Member States to respect foreign concerns and to engage in co-operative problem solving Neyers right to justification ensures compliance with European criteria which place restrictions on national autonomy. This type of restraint, however, can be understood as a democratic command: transnational justice and national democracy not only mutually

14 See Neyer (2011b; 2012). For Forsts comments, see Forst (2011a; 2011b; 2011c). 15 [T]he legitimacy of governance within constitutional states is flawed in so far as it remains inevitably one sided and parochial or selfish. The taming of the nation-state through democratic constitutions has its limits. If and because democracies presuppose and represent collective identities, they have very few mechanisms ensuring that foreign identities and their interests be taken into account within their decision-making processes. The legitimacy of supranational institutions can be designed as a cure to these deficiencies as a correction of nation -state failures as it were (Joerges and Neyer 1997: 293). 16 Neyer defines it as an entitlement to demand and receive justification from all those individuals or organisations which restrict our freedom (2010: 908).

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support but also necessitate each other (2010: 918).17 Transnational justice is a distinct form of justice. It is not the type of justice which Herman Hellers social state can accomplish through majoritarian democratic will-formation. It is nevertheless a move far beyond Savignys model of justice under private international law because it is not focused on spheres of private autonomy but engages national polities comprehensively.

Transnational and Domestic Justice: A Common Background Neyers reliance on justification rather than on democratization in the attempt to imagine conditions of legitimacy in the Europeanization process refers explicitly to the work Rainer Forst (2010: 908).18 In contrast, Forst seems mainly irritated by Neyers focus on the defence of individual autonomy against political intrusion. He argues that the right to justification is in its original design embedded in a social normative order without arbitrary rule or domination. Forsts concept of right seems in consequence much more intimately than Neyers to be linked to democracy; it entails the right to be part of justificatory practices a right to be exercised in democratic procedures (2011a 39). Forsts concern is indeed distinct. His target is, not the mainstream understanding of Europes democratic deficit, but the general dogma in political theory, which postulates an essential difference between democracy and justice and their potential political incompatibility (2011b: 1). The destruction of this dogma goes hand in hand with two more far-reaching critical claims. He first rejects the assumption that only states can provide a context within which justice can be realized. Then he also rejects the idea that it a distinct demos is required to exercise the political practice of justice (2011a: 38). This is a much more radical critique of the traditional distinction between domestic and international justice than Neyers. In essence, Forsts notion of political practice simply pre-supposes that a basic structure of justification is to be constructed where arbitrary rule has to be excluded. This is not dependent upon the kind of positive institutionalization in which Neyer anchors his right to justification.

Section IV. Technocratic Legitimacy contra Institutionalized Economic Rationality: Two Paradigms of Legal Integration Theory and their Exhaustion Technocratic planning stood at the beginning of the European Economic Community. Equally important was the economic project of an opening of the then still national

17 See also Maduro (1998: 162 ff); Howse and Nicoladis (2008); Keohane, Macedo and Moravcsik (2009). 18 The reference in particular is to Forst (2007).

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economies. Technocratic rationality and economic rationality, the two paradigms of legal integration theory which we will discuss in this section, thus appear as concepts with a historical and political foundation. And both are powerful enough to suggest parallels with non-legal disciplines.19 More important in the present context, however, is that we understand how these traditions have responded to the cleavage of (domestic) social and transnational justice (justice under private international law). The constructions of Europes legitimacy through such syntheses will hence be used as the common reference of the theoretical comparisons undertaken below.

Two Legacies from the Foundational Period Executive power, executive federalism, functional constitutionalism, transna tional administrative power20 ever since its inception, and in constantly changing variations, terms of this kind have been use to characterize the integration project as bureaucratic machinery. The path-breaking initiator of this tradition was Hans Peter Ipsen, the influential founding father of European Law as a new legal discipline in Germany (see Ipsen 1964: 14 ff; 1972: 176 ff; Kaufmann 1997: 300). Ipsens past was, to paraphrase Hans Ulrich Jessurun dOliveira (2004), not totally flawless during the nazi period (Joerges 2003: 182-84). However, his post-war work on the young German democracy and its Basic Law demonstrates that he had very clear democratic commitments in general, and he endorsed the welfarist structure (Sozialstaatlichkeit) of the new order in particular.21 Ipsens sensitivity regarding the precarious legitimacy of the European system and his search for a type of rule whose validity was not dependent on democratic legitimacy are certainly impressive. With his understanding of the European Communities as organizations oriented towards functional integration (Zweckverbnde funktionaler Integration), Ipsen at once rejected positions endorsing more far-reaching federal ambitions and earlier interpretations of the Community as a mere international organization. He characterized Community law as a tertium between federal or state law and international law, and he described it as an order constituted by its objective tasks and assuming adequate legitimacy through its ability to provide solutions to these tasks (1970).

19 If Neyer as Forst asserts were to advocate output legitimacy and supranational problem -solving by proxy or expert discourses (Forst 2011b: 2, 7) he would indeed continue the technocratic tradition. That characterisation does not do justice to the intention to establish democracy-compatible forms of co-operative problem-solving (Joerges 2006). 20 See respectively Curtin (2009); Schtze (2010); Isiksel (2011); Lindseth (2010). 21 It is sufficient here to point to Ipsen (1988 [1949]).

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Ipsen represented the public-law department of the new discipline, which was to become, in German Universities and elsewhere, European laws, so to speak, natural haven. For historical and political reasons, Germany was destined to favour with particular emphasis the private- and economic-law dimension of the European project, and to conceptualize its juridical nature as an economic constitution. The theoretical basis of this notion was formed by Germanys ordo-liberal tradition, which reached back to the beginnings of the Weimar Republic and was to gain a semi-official status in the new German democracy and even to provide a trans-disciplinary (legal and economic) foundation for the social market economy. Among the core messages of ordo-liberalism were the fundamental human-rights dimension of private autonomy, the economic benefits of a system of undistorted competition, the indispensability of law as a means to establish such an order and to protect its functioning, and the restriction of discretionary state interventions in society founded in private law. The proponents of ordo-liberalism were fully aware of the strength of Germanys corporatist traditions and the collusion of economic and political actors in its history of organized capitalism. Such anxieties surely exercised influence on the (ordo) -liberal turn to Europe. The European level of governance promised to ensure stronger barriers against Germanys not-so-liberal traditions and its political opportunism in economic affairs than could be expected from the domestic institutional pillars of Germanys Ordnungspolitik.22

Both conceptualizations of the EEC that is, its perception as an essentially functional entity and its interpretation as an economic constitution provided a synthesis of social and transnational justice. Both substantially transformed the idea of justice under private international law into a much more comprehensive set of commitments, which included wide areas of public law and policy. But this move from pure comity among European nations into mandatory prescriptions was not meant to erode, let alone overrule, domestic welfarist accomplishments.23 This is more clearly apparent in the technocratic project with its explicit limitations of transnational governance than it is in the ordo-liberal project of an economic constitution of supranational validity. But post-war ordo-liberalism had sought to come to terms with the simultaneous commitment to the idea of an undistorted system of competition, on the one hand, and to the promise of social justice and security, on the other. This dual commitment required for the ordo-liberals the institutionalization of specific, albeit interdependent, orders: that is, a legally structured order of industrial relations and of

22 See for more detailed analysis Joerges (2005). For a comprehensive reconstruction in economic history see Abelshauser (2004). 23 This is adequately characterized in Isral (2005: 96).

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social security (Arbeits- und Sozialverfassung) along with the legally guaranteed economic ordo, the economic constitution (Wirtschaftsverfassung).

We refrain here from any detailed re-construction of the well-known further development of the integration project, its successes and crises, and the many efforts to adapt Europes institutional configuration to its various transformations. Instead, we focus on responses of exemplary importance for the present state of the Union from within the two paradigms.

Technocracy without Efficiency? Majones Sceptical Turn The importance of the technocratic tradition in the practical reality of the integration project can hardly be over-estimated. Its weight was bound to increase with the involvement of the European Community in an increasing number of regulatory policies, which were to be organized at transnational levels without being supported by a consolidated democratic order. How could the European Community hope to ensure the acceptance of its involvement in ever more problem-solving activities if not through an objective and expertise-based conceptualization of its enormous tasks? By far the most interesting and influential work to have renewed and refined the technocratic legacy is that of Giandomenico Majone.24 It is unique not only in its clarity and coherence, but also in the precision and subtlety of its reflections on the options for an alternative to the democratic constitutionalism of the Member States of the European Union. Majones famous conceptualization of Europe as a Regulatory State (1996), which operated essentially through non-majoritarian institutions, was conceived as a way of ensuring the credibility of commitments to, in principle, uncontested policy objectives. Welfare policies pose additional, and categorically different, problems, he argued. The Unions failure to institutionalize a comprehensive social policy is explained by Majone in reference to the reluctance of the Member States to surrender control of a politically salient and popular area of public policy. Equally important is the factual difficulty and political impossibility of replacing the variety of European welfare-state models and traditions with an integrated European scheme (2010: 144). On one hand, Majone respects the primacy of constitutional democracies. On the other hand, he underlines (with increasing urgency) that the integration project has, in fallacious manner, become comprehensively subject to its operational code (the principle that integr ation has priority over all competing values) (2010: 1), and he also identifies the camouflage strategies which he calls integration by stealth (2005). This is an alarming retreat from his earlier trust in the

24 For his response to Europes integration studies upon his return from the US see Majone (1989; 1991; 2010). Majone has pointed to the affinities of his concepts with Ipsen in Majone (1994: 23).

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problem-solving potential of the European project. However, his warnings cannot in any way be taken to reflect a change in his theoretical premises. Majone continues to underline that Europe does not have legitimate authority to pursue the type of distributive policies which welfare states have institutionalized (2010: 128 ff). He does not retract his plea for regulatory efficiency. His critical turn is, instead, motivated by the inefficiencies which he observes in the Unions operations. His quest for more modesty in Europes ambitions expressed in the phrase Gehts nicht eine Nummer kleiner? (Cant we content ourselves with a smaller size?) (2010: 170) summarizes these observations. His adaption of the unity in diversity formula is a consequence of these insights, to which we will return in the concluding section (2010: 205).

The Financial Crisis: From Economic Constitution to a State of Exception? Most proponents of ordo-liberalism know all too well of the tensions between their visions and the Realpolitik operative at all levels of governa nce. To what degree did Germanys social market economy (soziale Marktwirtschaft) represent a society founded in private law (Privatrechtsgesellschaft)? Is there a grain of truth in Maurice Glasmans assertion that the characterization of Germany as a freely competitive capitalist economy is a most fundamental fallacy, so that we need to stop even calling it a market economy? (Glasman 1996: 56). Can Walter Euckens recognition of the specific features of the agricultural sector really be interpreted as a conceptually sound basis for the establishment of the CAP? (Eucken et al 1949: 51-54). How did the defeat of the ordo-liberal philosophy of competition law at European level, the so-called modernization of European competition law and the move towards a more economic approach, affect the life of the economic constitution? (see Schweitzer 2007; Schmidtchen 2007). Is the deletion of the system of undistorted competition from Article 3 TFEU (ex-Article 2 EU) truly insignificant because this notion has survived in Protocol 27? (see Behrens 2008: 193)

Only in one important instance, namely, the adoption of the Treaty of Maastricht with its substantial broadening of European policies and the recognition of constitutional commitments to non-economic objectives, did prominent exponents of the ordo-liberal tradition indicate that their allegiance to the European project might be exhausted (see Streit and Mussler 1995). The conceptual implications of the present financial turmoil have not yet been spelled out. The ordo-liberal contribution to its emergence is both tragic and ironic. Their warnings about the intrusion of discretionary politics into the edifice of the economic order were placated by the establishment of a European legal framework, which promised to establish the primacy of law over politics. This occurred through an insulation of monetary policy, its dedication to price stability, the establishment of the ECB as a fully independent institution outside the European constitutional order, and the completion of this regulatory straitjacket by the Stability Pact. When the German Constitutional Court, in its Maastricht
15

judgment,25 designated economic integration as a non-political phenomenon occurring autonomously outside the Member States, and interpreted the whole construction as a constitutional imperative for other, albeit insignificant, reasons, the otherwise extremely critical academic community (Bryde 1994; Weiler 1995; Mayer 2000), remained silent.26 The failures running through the whole construction of a Monetary Union, which can, by now, no longer be passed over in silence, have led to hectic activities, opaque bargaining and a treatment of the rule of law, which seemed to be far beyond the power of juridical imagination.27 A noble normative reason namely, solidarity, understood as a valid legal principle and duty in the EU is invoked to justify this readiness to take the letter of the law very lightly. There are many lawyers, political scientists, even economists and philosophers who share this concern (Calliess 2011a: 6; 2011b; Morgan 2011). Solidarity is the overriding principle and duty in the name of which serious normative reason is invoked to disregard the law. The solidarity among the Member States of the EU, as it is actually practiced, may, however, seem to have much more mundane reasons and much less beneficial effects.28 What is clearly visible is that its legal implementation will come at a price: solidarity militates in favour of helping the other, but it is to be exercised with a view to accomplishing the cure for the others failures, who must, therefore, be subjected to corrective economic governance (nachholende Wirtschaftsregierung) by those who help.29 Rainer Forst, in the somewhat gloomy passages of his remarks on the prospects of a democratic EU, envisages a scenario in which democratic justice is sacrificed for an increase in the standard of living for many as well as further elitist and technocratic forms of rule (2011b: 12). This is quite close to the above-mentioned type of juridification of solidarity. Unfortunately, even the promise of a beneficial economic outcome is not really credible.

An Interim Conclusion: The Unaccomplished Synthesis of Transnational and Social Justice

25 See Brunner v. European Union Treaty. 26 There are, of course, exceptions. For an insightful analysis of Monetary Union, see Snyder (1998). Instructive also are the briefs provided by Murswiek. 27 Article 122(2) TFEU has not to date been a widely known provision and it therefore deserves to be cited: Where a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control, the Council, on a proposal from the Commission, may grant, under certain conditions, Union financial assistance to the Member State concerned. The President of the Council shall inform the European Parliament of the decision taken. Europes large community of constitutionalists is again (un)surprisingly silent. See, however, Antoniadis (2011); Bruun (2011); Calliess (2011); Chalmers (2011); Chiti, Menndez and Teixeira (2011). 28 Here we follow here Streeck (2010); Mayntz (2010; 2011). 29 Calliess (2011c). His term recalls Habermas (1990), which deals with the transformation of the former GDR.

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The financial crisis and its implications are the most drastic illustration of the fact that the leading paradigms of integration theory are now exhausted. This is not to say that these paradigms will loose their impact. The current management of the financial crisis continues to adhere to neo- and ordo-liberal recipes, which merge with, and are in turn executed in, technocratic procedures. The most pressing danger for social justice stems from the rigidity with which the austerity policies are imposed in particular, in the south of Europe (Scharpf 2011; 2011b). Precursors of these developments have been visible. Ever since the turn to monetarism as Europes guiding economic theory and price stability as Europes highest constitutional commitment, all protective legislation and social entitlements could be perceived as impediments to economic efficiency and growth. The quite spectacular line of cases, in which the ECJ has assigned primacy to the economic liberties over national collective labour law and related arrangements,30 has at least implicitly confirmed such views. As Simon Deakin has pointed out in a recent essay: this chain of judgments started in December 2007, only a few weeks after the beginning of the financial crisis. We cannot, Deakin adds, discern a certain and direct link between these rulings and the financial crisis or the institutionalization of monetary policy. What seems apparent to him, however, is that this background has helped to legitimize a specific way of thinking about the relationship between the legal system and the process of economic integration (Deakin 2011). This is neither a particularly encouraging basis for the further theoretical exploration of a possible synthesis of domestic and transnational justice nor a good reason to suspend such efforts including the search for interdisciplinary learning.

In view of the common past that connects this author with Jrgen Neyer, it cannot come as a surprise that we recognize in principle his distinction between the legitimacy of Europeanization and the democratic legitimacy of constitutional states. On two issues our views diverge. In 1997, we jointly examined the vocation and potential of European law for correcting the structural democracy deficits of the Member States through a reconstruction of core provisions of primary law and leading ECJ cases. Neyers trust in the prudence of the ECJ and in the normative quality of the doctrines the Court is, in our opinion, exaggerated. A benevolent reading of the Courts jurisprudence is a legitimate strategy of legal interpretation . But it is not possible and justified in all cases.31 Even the Cassis-de Dijon case, which we have cited as our prime example of a just mitigation between German, French and European

30 Case C-438/05, International Transport Workers Federation, Finnish Seamens Union v Viking Line ABP, [2007] ECR I-10779; Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetarefrbundet, [2007] ECR I-11767; Case C-346/06, Rffert v Land Niedersachsen, [2008] I-1989. See Joerges and Rdl (2009). 31 Suffice it here to point to the recent case law on labour law, cited in note 80 above.

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concerns, rests on highly questionable constitutional assumptions. To be sure, the Court has institutionalized a right to justification on behalf of European citizens and corresponding duties of the Member States. But its conception of this obligation subjects the political autonomy of Member States to enormous restriction, as they can only invoke those reasons which the ECJ has enumerated. By the same token, the Court has assigned to itself wide discretionary powers as a constitutional court above national authorities.32 Similar reservations, unfortunately, need to be added to our defence of comitology as a model of deliberative supranationalism. The type of constitutionalization of this institution which we envisaged is not proven to be the road taken in the institutional development of European social regulation (see Joerges 2008; Everson 2011; Falke 2011).

Jrgen Neyers main target is the perception of the European legitimacy problem in his home discipline. His main ambition is to develop an alternative, which is more realistic than the mainstream of integration studies in political science and nevertheless normatively attractive. Rainer Forst operates at a philosophical level. His main targets are competing normative theories. This is not to say that his philosophical reasoning is insensitive to practical and institutional complacency. The legacy of critical theory shields him from such complacency. It seems at least plausibly possible to translate his views on the co-originality of justice and democracy into the endeavour to realize social justice alluded to above.33 The same holds true for his critique of the assumption that democracy beyond some demos, would be inconceivable. What he has to say about transnational justice is definitely relevant in the debates on the constitutionalization of international law (2007: 357 ff).

It also remains true, however, that the approaches promoted in European studies, philosophy and law remain distinct. This is the case even where they use the same vocabulary. Proceduralization is a case in point. Even though there is a degree of commonality in their rejection of prefabricated formulas or recipes and insistence on productive participation and involvement in the generation of justice, European studies, philosophy and legal science have to come to terms with very different challenges. The lawyers contribution to the realization of justice resides in conceptualizations of claims, institutional ideas and practical suggestions with which the legal system can be constructively confronted. This kind of activity needs inspiration from political science and political theory. But it also requires a productivity of its own.

32 For an elaboration of these points see Menndez (2011: 175 ff); Fossum and Menndez (2011: 45 ff). 33 See Section II above.

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Section V: Justum Facere in the Europeanization Process It is difficult to imagine a more critical state of the Union and its law than the present. The time of permissive consensus, the confidence that Europe will master this crisis as it has done so often in the past, is fading away. One cannot be more passionately committed to the European project than Jrgen Habermas and Hauke Brunkhorst (see Habermas 2009, 2011; Brunkhorst 2011). Both agree in their diagnoses. They see Europe on course towards an executive federalism and technological (mis)management , which is threatening democracy and the rule of law. However, both also believe that the crisis will impose constraints which may be transformed into a democratic constitutional moment (Habermas 2011; Brunkhorst 2011: 466). Perhaps, in the shadow of such scenarios, it may appear rather nave to reflect on perspectives forming alternatives both to the perception of immediate catastrophe and to a (somewhat improbable) democratic future. And yet, it would be simply irresponsible not to do precisely that. The federal vision of Europe has, although often proclaimed, never been realistic. However, a return to autonomous nation states is neither likely nor desirable. For quite some time, certainly since enlargement, it has been essential to take Europes diversity seriously. In view of the very different histories and historical experiences of the European States, the deepening of the variations in their socio-economic constellations, their uneven potential to pursue objectives of distributive justice and to respond to economic and financial instabilities, it has become increasingly inconceivable that the European publics will converge in their political perspectives. In particular, it has become inconceivable to find and endorse a magic formula, able to institutionalize a pan-European system ensuring social justice. Should one exclude the availability of a third way, lying somewhere between a defence of the nation state, on the one hand, and federalist ambitions, on the other? The pattern of conflicts-law constitutionalism, outlined below, argues that this question can find an affirmative answer.

Conflicts-Law Justice The idea of conflicts-law constitutionalism has been presented quite often and at some length.34 It should suffice in the present context to restate briefly the basic analytical premises of this approach and its normative premises. These premises are as follows: the European nation-states have, for compelling historical reasons, established a Community which was, in its foundational period, meant, first of all, as a response to their bitter experiences, but which also sought to foster the well-being of the Communitys citizens.

34 For an elaboration see Joerges (2011); Joerges Kjaer and Ralli (2011).

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This latter rationale has developed an enormous independent dynamic. It has deepened interdependencies and produced irresistible demands for co-operation between Member States. The alternative, which the conflicts-law approach advocates is to tolerate and to take the fortunate motto of the otherwise unfortunate Draft Constitutional Treaty seriously. That is to say, the principle of Unity in Diversity needs to be read as Europes vocation,35 and it needs to be viewed as a challenge to transform what may be perceived as a precarious constellation into a stable and sustainable co-operative venture.

There are strong normative reasons why conflicts-law constitutionalism proposes itself as the legal basis and framework for this venture. Europeanization has generated a constantly increasing distance between decision makers and those who are affected by decision-making. This schism is widely perceived as a characteristic of decision making at European level, which affects European citizens profoundly, but does so in non-transparent ways, which admit few opportunities for holding the decision makers accountable.36 The schism is a normative challenge to democratic orders in which citizens can interpret themselves as the authors of the rules with which they are expected to comply. However, the schism is also one which is inherent in nation-state government. Increasingly, constitutional states are unable to guarantee the inclusion of all the persons upon whom their policies and politics in internal decision-making processes have an impact. The conflicts-law approach offers a way out of this dilemma, which turns the debate on the European democratic deficit upside down. It reconceptualizes European law as a means of compensating for the democratic failure of nation states, and it suggests that it is precisely from this potential that European law can derive its legitimacy.37

The elaboration of this argument is a long-term project, which has to substantiate various pragmatic dimensions and find responses to complex normative challenges. The most topical implication today concerns the scope of European activities and both the legitimacy and the limits of European competences. The compensatory function of European law provides sound normative reason for restrictions of national political autonomy. However, it would, at the

35 Article I-8 Draft European Constitutional Treaty (OJ C 310/1, 16/12/2004). 36 See Habermass very first essay on European integration (1990). The Luhmannian parlance should not distract from Habermass democratic concerns. They coincide with our argument that the supranational European conflicts law has to counter the democratic deficits of nation states: its inability to include those concerned into national decision-making. 37 See note 15 above.

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same time, impose justificatory constraints upon the adoption and implementation of European measures.

What is most important to underline and to understand in this regard is that the conflicts-law approach needs to break radically with the legacy of methodological nationalism within the traditions of both continental private international law and Anglo-American conflict of laws. This break is inherent in the normative core of the conflicts-law methodology, and it is also a pre-requisite for its operation in the multi-level system which the European project has generated. Our approach accordingly:

distinguishes between vertical, horizontal, and diagonal legal conflicts in the EU, i.e., conflicts about which legal norms apply to a given case. [] Vertical conflicts are conflicts between legal regimes at different territorial levels; they occur both between national law and EU legislation. [] In horizontal conflicts, which represent the traditional PIL setting, the injunctions of different national laws to a given case diverge. Horizontal legal conflicts occur typically in the context of transactions involving the movement of persons, goods, or finances across national borders. Diagonal legal conflicts finally occur if regimes at two different levels that apply to different aspects of a given case make contradictory demands (Mayntz 2007: 23-4).

The pure diversity of these conflict constellations militates against any hierarchical reconstruction of the European polity and the very nature of these conflicts militates in favour of a differentiated, three-dimensional approach. The compensation of the democratic deficits of the nation state is the prime task of European conflicts law. But Europe does not only need to alleviate itself of the laws nationalist and parochial legacy it also needs to provide constructive responses to its increasingly inter-dependent, regulatory tasks and problems. It has to re-constitute, within Europeanized frameworks, the geology of the law of constitutional democracies, the need for problem-oriented special legislation, the development of a regulatory machinery with specific institutional infrastructures, the inclusion of non-governmental actors into regulatory tasks, and the supervision of the governance arrangements within which such co-operation can take place.

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However, we do not intend to go into the complex details of such efforts here.38 Instead, we reserve the remaining space for our guiding normative question: In what way can this type of conflicts-law affect or, as we propose, accomplish a new synthesis of social and transnational justice?

Re-constructing Justif(y)ication The conflicts-law approach operates in all of its three dimensions without a substantively predefined finalit and without a system of doctrinal recipes. The conflict constellations to which European law is required to respond are simply so multi-faceted and unpredictable that a prefabricated system of rules able to provide orientation for just solutions is simply inconceivable. The deeper normative reason for this type of legal indeterminacy, however, resides in the need to elaborate new answers in the search for a proper mitigation between European and national concerns. Conflicts-law solutions must be generated in a discovery procedure of practice (see Joerges 1986: 153). That is, it must be generated in a process, which aspires to what Rudolf Wiethlter has called Rechtfertigungsrecht (Law of Justification): a process in which the mysterious potential of law to transform social contexts, to extract socially-adequate legal concepts from these social contexts, and, both at the same time and in the same move, to create the legitimacy of this law production becomes evident (2005). Wiethlters visionary notion is adequately deciphered as the dual self-justificatory and juridification tendencies of all law within society (Everson and Eisner 2007: 41). It is an attempt to renew the proceduralization of the category of law , which Wiethlter had already conceptualized in the 1980s, at the same time as, or even before, Habermas systematically elaborated this notion as a bridge or mitigator between facts and norms.39 More openly and strongly than Habermass latter concept, Wiethlters idea of Rechtsverfassungsrecht [Law formed through the constitution of law] underlines its societal sources, a message which the title of his essay Recht-Fertigungen eines Gesellschafts-Rechts captures in a very condensed form.40

38 The terminology may appear idiosyncratic. The messages, however, which it seeks to transmit, reflect quite widely shared insights into the need to evaluate the geology of modern legal systems in differentiated ways. See for example Nickel (2008); Calliess and Zumbansen (2010: 21 ff); Tuori, (2011: 207 ff). 39 See Wiethlter (1982; 1989); Habermas (1992: 516 ff). 40 Just-ifications of a Law of Associations is the translation that Ian Fraser, Florence, has found. Fraser notes that Wiethlter engages in many kinds of wordplay, often splitting the compound words common in German into their component parts to suggest several meanings at once. Most of this is untranslatable, he added; the flavour resembles that of the style of some preachers in English, who split atonement, say, into at-one-ment. I have added the occasional note [-tr], where unavoidable, to elucidate otherwise impenetrable connections.

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The conflicts-law approach is always susceptible to the question: How can we be sure that a law finds justification? In response to this, it is important to underline that the conflicts-law approach, including its methodological underpinning, is conceived as a re-constructive enterprise. It is possible to re-construct the contexts which generate competing claims. It is possible to examine the factual and normative reasons of the pertinent contenders. It is finally possible to expose the responses of the decisions-making bodies to the crucial question on what grounds they may deserve recognition.41 This exposure has to take the geology of modern law into account. Purposive programming , the recourse to specialized agencies, and the integration of expert knowledge into legal decision making, require specific evaluation criteria. So does the supervision of governance arrangements, which are gaining ever more importance in transnational arenas. Exemplary studies in which such exploration has been successfully undertaken are available. Yet what appears simply inconceivable is the elaboration of a comprehensive body of substantive European legal provisions as an embodiment of pan-European justice. To rephrase our title: Justice has to be generated through law-making processes in which Europe realizes its unity in diversity.

41 Habermas uses this formula quite often. See Habermas (2001: 113).

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