Societal Constitutionalism: Background, Theory, Debates

The article provides a systematic outline and refinement of societal constitutionalism (SC), one of the frameworks emerged in contemporary legal theory to analyse constitutional phenomena. After an introduction in Section 1, Section 2 summarises SC’s theoretical background, namely the debates on the Economic Constitution (2.1), legal pluralism (2.2), systems theory (2.3), and the work of David Sciulli (2.4). Section 3 explains SC’s analytical limb, which on the one hand criticises some tenets of state-centred constitutionalism (3.1); and on the other hand identifies functions, arenas, processes, and structures of a constitutionalised social system (3.2). Section 4 turns to SC’s normative limb, pointing to some constitutional strategies that increase social systems’ capacities of self-limitation (4.1); and develop a law of inter-constitutional collisions (4.2). Section 5 addresses the main competing approaches and criticisms, which are based on state-centred constitutionalism (5.1); on international/global constitutionalism (5.2); and on contestatory/material constitutionalism (5.3).

The Material Constitution: Ordoliberalism, Neoliberalism, and the Deradicalization of Political Opposition

<Online Only>This chapter considers how societal changes contributed to the reconstitution of post-war Europe in such a way as to restrain sovereignty, depoliticize the economy, and deradicalize politics. The chapter traces the re-foundation of an economic liberalism that had collapsed in the interwar period, attending to the influence of ordoliberalism and neo-liberalism in the constitutional imagination. It examines how economic liberalism was tempered in practice, as a result of social democratic and Christian democratic influences, the realpolitik of a programme of social market economy, and the process of European economic integration itself. It goes on to consider how the economic constitution was entrenched along with the ‘end of ideology’ in Europe, as even notionally communist parties turned towards the political mainstream and rescinded any revolutionary ambitions, long before the ‘end of history’ was proclaimed in the aftermath of the fall of the Soviet Union. The chapter concludes that the economic constitution does not signify the triumph of liberal democracy, but of technocratic managerialism, establishing a path that would be deepened, but also contested, after Maastricht.</Online Only>

Independent Economic Regulators in Belgium: Contextualising Local Resistance to a Global Trend in the Light of the Belgian Economic Constitution

Inspired by the American experience, the European Union has made it compulsory for Member States since the 1990s to entrust certain regulatory powers to national authorities independent from the government in several sectors of the economy. Such a development is part of a larger trend that has taken place at the global level since the 1980s. The choice for independent regulators with wide powers must ensure credible and effective regulation of the economy, away from the shortterm thinking that plagues politicians. Yet, the creation of independent regulators of the economy does not fit well with the constitutional, political and economic traditions of several European states, such as Belgium. In Belgium, the creation of independent economic regulators has faced resistance. Using Belgium as a case-study, this paper seeks to contextualise this resistance and argues that it should be understood in the light of the mismatch between the (neo-liberal) view regarding the respective roles of 'experts', politicians and economic actors in the regulation of the economy that is behind the creation of independent economic regulators and the Belgian economic constitution.

Islam and the Indian Ocean: Legal Culture and Economic Life to c. 1900

For historians of the Indian Ocean, the stakes in thinking about law and economic life are very high. As a key arena of world history, the Indian Ocean world has emerged as a site for reflecting on issues of connectivity and circulation, and for writing histories that cover broad spans of space and time. Many of these histories—and indeed, the pioneering works in the field—have focused on matters of trade and empire, the twin pillars of world history more broadly. Since around 2000, research has taken on different forms of migration as well as matters of ideology, culture, epidemiology, and more, but many of these discussions are still built on foundations of trade and empire: people, books, ideas, and diseases primarily circulate through networks forged via trade or through imperial channels. All of it, however, requires a rigorous engagement with questions of law, which undergirded production and trade in the region. The history of law and economic life in the Indian Ocean might be mapped onto three arenas. First, law played an important role in the politico-economic constitution of empires (Muslim or otherwise) in the Indian Ocean. Beyond that, though, one must consider the legal dynamics of trade networks within this world of empires, examining the intersecting private-order and public mechanisms that merchants drew on to regulate their commercial affairs. And finally, the histories of law, empire, and economic life all intersected in courtrooms around the Indian Ocean world, as economic actors took their disputes to different tribunals, shaping the contours of the legal history of the region.

The Euro Group’s Informality and locus standi before the European Court of Justice: Council v. K. Chrysostomides & Co. and Others

This article provides an analysis of the recent European Court of Justice’s (ECJ) judgment in Council v. K. Chrysostomides & Co. and Others. After the Cypriot financial and banking crisis of 2012-13, the case raised the issue as to whether the Euro Group could be considered as an ‘institution’ for the purposes of non-contractual liability under Art. 340 para. 2 of the Treaty on the Functioning of the European Union (TFEU). The Court replied in the negative, offering a set of arguments on the nature and role of the Euro Group within the European economic constitution and on the legal protection of individuals vis-à-vis austerity measures. The article summarises and criticises those arguments, showing how this judgment of the Court has made the Euro Group essentially immune against judicial proceedings, despite its pivotal role in the management of European economic and monetary issues.