Authoritarian Liberalism, authoritarian managerialism and the search for alternatives: Comments on Michael A. Wilkinson’s Authoritarian Liberalism

Abstract

Michael Wilkinson’s Authoritarian Liberalism is an important, and, in many respects, praiseworthy contribution to the debates on the present state of the European Union (EU) and its highly problematical future. Its recourse to political economy in the re-construction of the integration project contrasts innovatively and instructively with the usual, if subtle, stories told about the history of Europe’s “integration through law” and its promotion of an “ever closer union among the peoples of Europe”. The spectre of “authoritarian liberalism” is a counter-narrative which exhibits the socio-economic dimensions and forces us to consider the political quality of European rule, in which Europe’s “material constitution” is a key concept of these analyses. “Authoritarian liberalism” is more than just a catchy characterisation of Europe’s constitutional constellation. The resort to this notion ties in with a conceptual history that definitely deserves to be remembered and continued.

1. Introductory remark

Michael Wilkinson’s Authoritarian Liberalism is an important, and, in many respects, praiseworthy contribution to the debates on the present state of the European Union (EU) and its highly problematical future. Its recourse to political economy in the reconstruction of the integration project contrasts innovatively and instructively with the usual, if subtle, stories told about the history of Europe’s ‘integration through law’ and the promotion of an ‘ever closer union among the peoples of Europe’. The spectre of ‘authoritarian liberalism’ is a counter-narrative which exhibits the socio-economic dimensions of the integration project and forces us to consider the political quality of European rule.

My comments cannot cover the entire range of this book, its challenging contributions to legal and transdisciplinary theorising and the debates on the present state of the Union. The following comments have to be selective. Their focus, however, is not an arbitrary choice. After decades of benign neglect in European studies, Germany’s ordoliberal school of thought and in particular its conceptualisation of national and transnational ‘economic constitutionalism’ has made a formidable career, significantly more outside than within, German borders. Numerous commentators in media and universities have identified it as a variable that should explain the position of Germany during the European sovereign debt crisis.¹ Ordoliberalism is of obvious importance for the argument of the book. The term is used no fewer than 197 times as a key to the understanding of ‘authoritarian liberalism’. Pertinent analyses of the book cover the emergence of ordoliberal theorems since the 1920s in the Weimar Republic, the foundational manifesto of 1936 with its synthesis of economics and law represented by the lawyer Franz Böhm and the economist Walter Eucken, the ordoliberal flirtation with the Nazis and their crown jurist Carl Schmitt, the post-war ideational and political renewal by the Freiburg School, and above all the move of the ordoliberal school from the Federal Republic to the European Economic Community under the leadership of Böhm’s disciple Ernst-Joachim Mestmäcker. Particularly intensive is the perception of the so-called ordoliberalisation of Europe by the establishment of the Economic and Monetary Union (EMU) in the Treaty of Maastricht and the later ‘Germanisation’ of Europe in the course of Europe’s responses to the financial crisis.

The following discussion will proceed in three steps. The first section will reconstruct briefly the conceptual history of ordoliberalism, point to the transformation of its theoretical framework, criticise the undifferentiated use of the notion and plead for more analytical precision. The second section will concern the prime target of Wilkinson’s critique, namely the impact of ordoliberal theorems on the course of integration project, the design of EMU by the Treaty of Maastricht and thereafter the responses to the financial crisis. A concluding section will address Wilkinson’s plea for a theoretical reorientation of integration research and Europe’s chances to overcome its entrapment in the present crisis constellations.

2. How do you know it is ordoliberalism when you see it? Varieties in the conceptual history and praxis of the ordoliberal tradition

A tradition cultivated over a century is bound to revise its theoretical frameworks (2.A). Ordoliberalism has also experienced a reception in political contexts which follow a logic of their own (2.B).

A. The theoretical project

Ordoliberalism embodies a theoretical project with challenging ambitions. Rudolf Wiethölter has characterised it in his typical and intractable density:² Ordoliberalism is a ‘social theory (Gesellschaftstheorie) with law as its core (Rechtstheorie als Gesellschaftstheorie)’, a transdisciplinary school of thought, synthesising law and economics, which promises that, on the basis of this synthesis, a good society can be established. This is a reconstruction which captures well the core messages of the leading representatives of the ordoliberal tradition. It is important, however, to be aware of the transformations of this tradition which is now over a century old. Wiethölter’s characterisation is not outdated but written in the shadow of the ordoliberal founding father, the jurist Franz Böhm (whom Wiethölter succeeded in Frankfurt in 1962) and the economist Walter Eucken whose main work was published only posthumously in 1954.³ The two founding fathers were clearly committed to the kind of transformation of their disciplines which Wiethölter outlines.⁴ Walter Eucken’s defence of a competitive ordering of the economy was a political project.⁵ The same holds true for Franz Böhm’s critique of Germany’s tradition of organised capitalism, his lifelong crusade against economic power⁶ and his vision of a ‘private law society’.⁷ These projects have to be understood in their contexts; post-war Germany’s constitutional democracy required adaptations, which did not, however, affect the ordoliberal commitment to ‘economic’ constitutionalism.⁸

The theoretical project of the two founding fathers underwent a transformation of nothing less than paradigmatic importance. This transformation was initiated and dominated over decades by Böhm’s most successful disciple, Ernst-Joachim Mestmäcker. Michael Wilkinson refers approvingly, and rightly so,⁹ to Quinn Slobodian’s assessment of Mestmäcker as ‘the most important figure in combining Hayek with Böhm’.¹⁰ This transformative move is widely neglected in the critique of ordoliberalism. Its importance is nevertheless obvious. The commitment to ‘perfect competition’ was replaced by Hayek’s theorem of ‘competition as a discovery procedure’,¹¹ the objective of a control of private economic power shifted to the control of ‘anti-competitive’ public regulation.¹²

There is a ‘third generation’ of ordoliberal scholarship which has redefined the concept of the economic constitution. Its master thinkers are the American economist James M. Buchanan, whose work on public choice earned him the Nobel Prize in 1986, and in Germany, Lars P. Feld Member since 2011 and in 2020/21, Chairman, of the German Council of Economic Advisors, and since 2010 Director of the Walter Eucken Institut in Freiburg. All three generations kept the linkages of law and economics alive, albeit in very different ways. Feld’s innovation is committed to Buchanan.¹³ His understanding of economic constitutionalism is informed by this theoretical framework.¹⁴

B. Evaluating the praxis of ordoliberalism

In the observation of political, economic and legal developments through ordoliberal lenses, the yardsticks and evaluations vary considerably.

Theoretical and practical guidance in the realms of economic policy and important areas of legal decision-making. This ambition has been upheld in principle throughout all three generations. It is nevertheless difficult to defend. According to economic historian Alexander Nützenadel, Ordnungökonomik has lost much ground in academic circles and had slipped into the margins of the discipline by the turn of the millennium.¹⁵ Similarly, it has become difficult to identify proponents of ordoliberalism in the younger generation of private and economic law, formerly a stronghold of ordoliberal scholarship.¹⁶ How likely is it that ordoliberal theorising will dominate German politics? It is nevertheless true that institutions with an ordoliberal profile such as the Walter-Eucken Institute in Freiburg, the Stiftung Marktwirtschaft in Berlin¹⁷ and the Kronberger Kreis¹⁸ defend the ordoliberal legacy. Such accounts content themselves mostly with the designation of principles enshrined in the ordoliberal tradition. Walter Eucken himself did so when he defined the core elements ‘of an order that is both economically functional and humane’.¹⁹ Often ordoliberalism is thereby downgraded or reconceptualised as an ‘economic culture’.²⁰

A third quite deplorable group of references to ordoliberalism can best be characterised as political small talk. A horrible example is the reading of Angela Merkel’s reference to the virtues of the Swabian housewife in her comments on the collapse of Lehman Brothers in 2008 as an indication of her commitment to ordoliberalism.²¹ Hardly less deplorable are the invocations of ordoliberal theorems in the countless Bundestag speeches of Wolfgang Schäuble, then Germany’s Finance Minister.²²

There is every reason, as we can summarise this section, to examine the viability of references to ordoliberalism.

3. What is authoritarian about ordoliberalism? On the conceptual history of ordoliberalism and its impact since its beginning

The notion ‘authoritarian liberalism’ was coined by Weimar’s constitutional theorist Hermann Heller in his response to an infamous talk of the ‘Dark Lord’ of German Constitutionalism.²³ We owe the rediscovery of this piece and the publication of an English translation in the European Law Journal to Agustín Ménendez,²⁴ who dedicated a special section of the journal to the promotion of Heller’s essay.²⁵ This was a wake-up call in the midst of Europe’s authoritarian austerity politics in the financial crisis with a considerable resonance in critical quarters, including Michael Wilkinson, who refers to Heller in his explanation of the notion in the introduction of his book and many times thereafter.²⁶ It seems worth mentioning that the reading of Heller’s essay as a reference to ordoliberalism is obviously tempting, but is nevertheless a mistake. Even a connoisseur like Philip Manow has committed this error in a seminal article;²⁷ so did I when I referred to Manow some 15 years ago.²⁸ Heller never mentions anything that could be attributed to authors who were to establish the ordoliberal school. Heller was exclusively concerned with Carl Schmitt. This is not to be understood as an outright acquittal. Ordoliberalism deserves such inquiries.

A. Franz Böhm in Weimar and the Third Reich

Any discussion on ordoliberalism has to pay tribute to Franz Böhm. His scholarly work is outstanding, his civic activities courageous.²⁹ He was born 1895, served as a lieutenant in the First World War and thereafter became a law student in Freiburg im Breisgau; from 1926 onwards he worked in the Cartel Department of the Ministry of Economics. In this position, he published an intriguing essay on the problem of private power.³⁰ He left the ministry and obtained his Ph.D. in Freiburg in 1932 and one year later his Habilitation.³¹ Intensive co-operation with Walter Eucken and Hans Großmann-Doerth in the years thereafter led, in 1936, to the publication of ‘Unsere Aufgabe’ (Our Task).³² Unfortunately, quod non est in Breton, non est in mundo. Only the 14-page manifesto³³ and another tiny piece³⁴ of Franz Böhm’s rich œuvre³⁵ numerous writings are available in English.³⁶

‘Economic constitutionalism’ is the trademark of Böhm’s entire work and the ordoliberal tradition. As Michael Wilkinson underlines, Böhm has with his understanding of the ‘economic constitution’, turned the original meaning of that notion upside down. The term was coined by leftist social democrats, in particular the foundational mastermind of German labour law, Hugo Sinzheimer. In the context of a project at the University of Liège on Economic Constitutionalism,³⁷ Guillaume Grégoire, one of the organisers, has reconstructed the two understandings of economic constitutionalism in great detail.³⁸ He adds, with apparent regret, that the original meaning fell into oblivion.³⁹ Michael Wilkinson points out⁴⁰ that the democratisation of the economy remained alive on the agenda of the trade unions and leftist intellectuals during the Weimar Republic.⁴¹ We share Grégoire’s regret; his concern will be taken up briefly in the concluding section.

For now, we continue with a discussion of Böhm’s revision of the notion. We start with a quite incriminatory passage from his Wettbewerb und Monopolkampf (Competition and the fight against monopoly power):⁴²

From a constitutional point of view, the system of freedom of trade and industry is a constitution of economic life in the positive [law] sense; the introduction of this system consequently means a ‘complete decision’ (Gesamtentscheidung) over the type and form of the economic-social cooperation process, in the same sense in which Carl Schmitt describes the state constitution as a ‘complete decision over the type and form of political unity’.⁴³

Here you have it all: the idea of economic constitutionalism and a strong Schmittian flavour together in one paragraph. And this is by no means the only delicate passage. Philip Manow has, in his seminal article of 2001,⁴⁴ untagged more of the same kind of authoritarian and ‘volkserzieherische’ passages.⁴⁵ There are hence reasons to be concerned. We have nevertheless to be cautious. There is a lot of double talk in the German texts of the 1930s which is not so easy to decipher. Grégoire explains:

Franz Böhm carried out a real theoretical coup de force: he endorsed the conservative critique of the ‘economic state’, but subverted Schmitt’s analysis to propose a truly liberal meaning of the concept of Wirtschaftsverfassung, where Böhm’s reference to the Schmittian meaning of (political) ‘constitution’ and the concept of Wirtschaftsverfassung set the two notions against each other. This proves ultimately to be particularly subtle and astute. Böhm operated with Schmitt’s concept, albeit against him.⁴⁶

But what about the much-cited use of the metaphor of the ‘strong state’ which Schmitt has used in his 1932 ‘address to business leaders’?⁴⁷ Schmitt started that address with an emphatic call for ‘courage of action’. ‘Business leaders’, so encouraged, are not expected to support and implement antitrust policies aiming at the control of economic power. There is a significant difference: while Schmitt’s ‘strong state’ was to establish the primacy of the political over the economy, the ordoliberal ‘strong state’ was to tame the political, through a rule-bound commitment to the competitive ordering of the economy. I was happy to read the endorsement of this reading by none other than Wendy Brown.⁴⁸

Manow has followed the ordoliberal traces up to the late 1930s. Immediately after the infamous Reichskristallnacht of 9 November 1938, the Freiburger Konzil (Freiburg Conciliatory) was formed. The group did not discuss economics, but the Bible and Martin Luther. This, so Manow submits, revealed the deeper protestant grammar (Tiefengrammatik) of the school.⁴⁹ The authors of the 1936 memorandum and the attendants of the Freiburg Conciliatory were not democrats,⁵⁰ and the ordoliberal strong state they envisaged was not a pluralist democracy. However, this does not mean that they were Nazis; they were in fact an opposition group. Franz Böhm and Walter Eucken were members of the Bekennende Kirche. Some members of the Freiburg School risked their lives in the resistance against Hitler. Großmann-Doerth, 42 years old in the Manifesto year of 1936, and drafted into the Wehrmacht in July 1939, died in 1944. Alexander Rüstow and Wilhelm Röpke, to mention two more sympathisers, had left Germany.⁵¹

B. Ordoliberalism in the Federal Republic and its move to Europe

Post-war Germany is a later story with its own conflicts and contradictions. Ordoliberalism was regarded as an untainted, and hence praiseworthy, legacy. The school became remarkably well ‘embedded’ in Germany’s post-war society. Maurice Glasman,⁵² by now Lord Glasman, told a wonderful, albeit all-too-euphemistic story of the post-war social market economy as a common project of the Christian Democrats, Social Democrats and both Christian Churches. This alliance was not sustainable, however. It has to be underlined in view of the career of the notion of the ‘social market economy’ outside Germany and at the European level,⁵³ that the early societal consensus in the Bonn Republic was fragile.⁵⁴ An important dissent concerned the social market economy as it had been conceptualised by Alfred Müller-Armack.⁵⁵ The ordoliberal core group identified ‘social interventionism’ in Müller-Armack’s project and rejected such ideas as rigorously as Hayek.⁵⁶ It should be furthermore noted that the ordoliberal concept of an ‘economic constitution’ was sustained mainly by private and economic law scholarship, whereas the resonance in public law remained quite marginal. Importantly, the Federal Constitutional Court rejected the theory of the economic constitution explicitly in two seminal judgments.⁵⁷ The impact of ordoliberalism on the legal order of the Federal Republic was limited. The same holds true in the realms of economic policy. Germany’s leading economic historian captures the simultaneity of officious commitments to Ordnungspolitik and Germany’s realpolitik well by its characterisation as ‘Ordnungspolitik der sichtbaren Hand (visible hand)’.⁵⁸ Ordoliberals had reasons to be concerned. The political economy of the Federal Republic experienced the revival of corporatist traditions and a return to the Bismarckian welfare state under Chancellor Konrad Adenauer in the 1950s.⁵⁹ Defeat before the Federal Constitutional Court and the resurrection of Germany’s tradition of ‘organised capitalism’ have incentivised the ordoliberal move to Europe and the anchoring of the project of an economic constitution at the European level. This was the type of move that ordoliberals were to undertake repeatedly when confronted with a schism between their ideas and political realities. Such responses have become ever more urgent in the course of the integration project.

C. Ordoliberalisation of Europe?

As suggested in Joseph Weiler’s reconstruction of the legal history of the integration project,⁶⁰ it makes sense also to distinguish in an analysis of the impact of ordoliberalism between the stages of the integration project. The following section will first deal briefly with the foundational period, then proceed to the to its assumed ‘consummation’ by the Treaty of Maastricht and the establishment of the EMU, and, thereafter the responses to the financial crisis portrayed in the book as a ‘Germanisation’ of Europe orchestrated along ordoliberal ideational patters.⁶¹

From Rome to the end of the foundational: Affinities

The move of ordoliberal theorising to Europe was initiated and thereafter guided by Ernst-Joachim Mestmäcker,⁶² Böhm’s most successful disciple.⁶³ Mestmäcker’s first professorial position was in Saarbrücken, a town which is a short distance from Brussels. This facilitated Mestmäcker’s weekly trips to Direction Génerale IV where his advice was very welcome as long as the Berlin Kartellamt was the one and only national cartel agency in Europe and for a good while thereafter. The short-term ordoliberal influence on European competition policy is well documented,⁶⁴ the stories about its long-term importance, however, are fake news. Mestmäcker experienced a replication of his disappointment within the Federal Republic. His vision of a European Constitution and the truly existing integration project drifted apart. Not only Böhm’s ideas of perfect competition, but equally Mestmäcker’s commitments to freedom as the core value of competition and to and to Hayek’s ‘competition as a discovery procedure’,⁶⁵ were – step by step – set aside by Chicago economics.⁶⁶ Renewed hopes rested on the advent of ‘regulatory competition’ as a new form of transnational economic constitutionalism.⁶⁷ Such hopes could not materialise.⁶⁸ A later response was Mestmäcker’s pamphlet against the Chicago School.⁶⁹ Even the European commitment to the ‘system of undistorted competition’ as a bulwark of the European economic constitution faded away. The removal of this notion, once enshrined in Article 3(f) of the EEC Treaty and then in Article 3(1)g of the EC Treaty, from the ‘competition protocol’ of the Lisbon Treaty may be of no legal importance.⁷⁰ It is nevertheless indicative of its de facto downgrading to one policy objective among others, in particular industrial policy, officially recognised in the Treaty of Maastricht.⁷¹ This distortion of the core concept of Mestmäcker’s economic constitutionalism may look marginal.

The core assumption and by the same token the Achilles heel of Mestmäcker’s commitments to economic constitutionalism can be explained with the help of one single passage of the seminal lecture which he gave in 1972 on the occasion of the 100th birthday of the Association of German Economists. There, Mestmäcker submitted what he then continued to defend for decades: economic constitutionalism ‘is not merely to recognise the common problems of definition of jurisprudence and economics. It is just as important to develop economic policy solutions susceptible of being bound by legal and constitutional rules.’⁷² At the time of the lecture, the common currency was a project with an uncertain future. Mestmäcker was hopeful. He believed that a common currency would promote socio-economic convergence in the European Economic Community (EEC). This was the premise of his plea for ‘economic policy solutions susceptible of being bound by legal and constitutional rules’. The EEC of 1992 is not the EU of 1972, however; the 20 years make a difference. It is as easy as that: the project of an economic constitution with rules binding economic and monetary policy was bound to fail in an ever more heterogeneous Union.

Maastricht: the end of the ordoliberal dream

It is, at this point, important to recall the distinction between ordoliberalism as a cultural tradition and convenient reference by politicians and journalists, on the one hand, and ordoliberalism as a serious theoretical endeavour, on the other.⁷³ Mestmäcker tried to be faithful throughout his life to the latter. And it is precisely this virtue that led him to a dead-end. The institutionalisation of this dead-end was the establishment of the EMU in the Maastricht Treaty of 1992. To be sure, the EMU is widely perceived as an ordoliberal accomplishment and Michael Wilkinson’s book endorses this view, albeit noting that, at the time, monetarism had become the dominant version of economic liberalism.⁷⁴ The matter is complex: Germany’s abandonment of the Deutschmark was the price to be paid for the acceptance of its unification. The Bundesbank and hundreds of Germany’s professors of economics criticised the introduction of a common currency.⁷⁵ Once the political deal had become irreversible, however, Germany’s negotiators pursued what they understood as Germany’s interest, shrouding this in ordoliberal terminology. The result was a hybrid: German substantive principles and French decision-making rules.⁷⁶ A very unfortunate role in all this was played by the Second Senate of the Federal Constitutional and its rapporteur Paul Kirchhoff.⁷⁷ In its Maastricht judgment of 12 October 1993, the German Court⁷⁸ held that the adherence to German stability principles was a pre-condition for Germany’s signature of the Treaty.⁷⁹ The constitutional implication: the Member States of the Union, first and foremost Germany itself, were deprived of their authority in economic governance.⁸⁰ I have characterised this outcome as a pyrrhic victory of ordoliberalism and the later responses to the financial crisis as its Cannae defeat.⁸¹

The destruction of economic constitutionalism through the authoritarian managerialism in the responses to the financial crisis

To reiterate the initial query of this section: ‘How can you know it is ordoliberalism when you see it?’ – instead of relying on hearsay evidence and more or less educated guesses, it seems safer to consult a renowned representative of the ordoliberal tradition such as Lars P. Feld.⁸² Two of his contributions on the financial crisis deserve attention in the present context. The first is a talk (‘Impulsrede’) on ‘Ordnungspolitische Prinzipien der Europäischen Währungsunion’ (Ordnungspolitical Principles of the EMU) given in 2011.⁸³ There, Feld explains that essential provisions of the EMU were inspired by ordoliberal principles and adds that they could never be implemented. The second is an essay that discusses the role of Germany in the financial crisis.⁸⁴ Feld and his co-author succinctly reconstruct ordoliberal legacies, discuss the recent critique of ordoliberalism by political scientists and conclude with the argument submitted in much brevity in the Impulsrede of 2011. Germany’s officious talk is ordoliberal. Germany’s realpolitik is something else. We have observed this discrepancy before. Can we nevertheless assume that Germany’s crisis politics is guided by ordoliberalism?

Michael Wilkinson is far from proceeding on such assumptions. He engages instead intensively with political economy. There is no space left here to go into the details of his analyses. I will instead summarise some works which he has not taken into account. My reading is unavoidably selective. It will be unsurprising in view of the many years I spent in Florence that I have paid particular attention to the impact of the crisis on Italy and Germany.⁸⁵ The analyses of the impact of the crisis on these two countries to which I refer depart from the varieties of capitalism studies initiated back in 2001 by Peter A. Hall and David Soskice.⁸⁶ This has by now become a contested approach.⁸⁷ It still helps to explain the striking discrepancies between Germany and Southern European.⁸⁸ To cite Philip Manow at some length:

… the common currency had indeed been conceived as a credible self-commitment device, especially by those who had heretofore lacked the possibility of credibly committing themselves to a low-inflation equilibrium (i.e., Italy and France, in particular). But this would offer a very ironic conclusion. Our focus on the fiscal consequences of EMU leads us to forget how much the independence of monetary policy had been directed as a signal towards market actors, rather than governments, namely, at those setting wages: monetary rules directed at wage discretion. Yet, the obsession of the Eurocrisis debate with the fiscal rules of allegedly ordoliberal origin that are said to have prevented an appropriate response to the crisis tends to obfuscate the main motivation behind the French or Italian push for a common currency, namely that European monetary rules should effectively discipline domestic wage discretion. Fiscal discipline, by the way, has to complement a non- accommodating monetary policy for this to work.

The upshot of his argument is only seemingly paradoxical. ‘It was not the austerity-obsessed German ordoliberals, but French and Italian political élites, besides the Commission of course, that had pinned all their hopes on rules.’⁸⁹

4. ‘There must be some way out of here, …’⁹⁰

Michael Wilkinson and I criticise the ordoliberal and other versions of economic constitutionalism for the same reasons: economic constitutionalism favours in all its varieties favours the ‘rule of economics’ without democratic legitimacy. We both sympathise with the understanding of economic democracy which ordoliberal economic constitutionalism has implicitly outlawed.⁹¹ It is obvious to me in particular from the question mark behind Michael Wilkinson’s reference to Angela Merkel’s TINA (‘There is no alternative’)⁹² that he is not at all prepared to abandon the ill-fated idea of economic democracy, at least not in the EU. How, then, can we find the way, which according to the heading of this section, must exist? A ready-made recipe is not to be expected. The ‘material constitution’ is the key concept on which Michael Wilkinson’s hopes rest. We read in the introduction: ‘The material constitution is a complex assemblage of ordering forces and structures: political unity, institutional power, social relations, and political-economic objectives.’⁹³ The material constitution operates behind the façades of legal formalism. This operation is essentially indeterminate and characterised by manifold tensions. The concluding chapter deals with crises not only of the formal, but also likewise of the material, constitution.⁹⁴

The concept is fascinating. To expose it to the kind of questions legal analyses tend to pursue cannot do justice to its specifics. They can nevertheless be raised. (1) What can we find out about its content? Michael Wilkinson underlines his indebtedness to the early Antonio Negri.⁹⁵ As I understand the reference, constituent power constantly challenges the constituted order; it works against its institutionalisation. Institutional realities are constantly open so as to include the constituent power, and institutions are in a permanent state of becoming. Constituent power can therefore be an element of law, meaning an institution that must constantly create new institutions. ‘The constitutional order is always a process of becoming.’⁹⁶ Is it hence in vain to find out anything about these processes? By no means if and because ‘the material constitution is not “what happens” in the sense of sheer occasionalism; rather it delineates the conditions which make possible the emergence of a state of affairs as a constitutional order. These conditions can be identified and analysed as objects of juristic knowledge.’⁹⁷ The answer is puzzling. On the one hand, the idea of ‘juridical knowledge’ enriches the discussion of the law–society relationships precisely because of its rejection of a neat separation of legal a non-legal spheres. On the other hand, it seems to do away with all the efforts to get a deeper understanding of the functions and functioning of law with the help of social sciences and interdisciplinary exercises.⁹⁸ (2) The follow-up query may look somewhat naïve: Are we in a position to evaluate the moves within the material constitution and use such insights for, e.g., the promotion of democratic economic constitution?

In the context of the foregoing discussions of ordoliberalism a second look at Chapter 5 on the material constitution, ordo- and neoliberalism⁹⁹ suggests itself. What I read is a highly instructive account of these theoretical strands which includes analyses of their conceptual weaknesses and the resistance they encountered. Similarly, instead of ending with a ‘conclusion’, I add a speculative suggestion, inspired by the affinities between our despair over the state of the Union and our perceptions of its unruliness. I suggest that these affinities can be made visible and understood with the help of the works of the previously mentioned Rudolf Wiethölter,¹⁰⁰ the Hermann Heller of the Federal Republic. Suffice it to quote a passage from an essay published in 1977. There he diagnosed a constitution behind the Basic Law of the Federal Republic, namely

… novel – non-binding-binding – behavioural ‘contracts’ of institutionally and organisationally influential power representatives (‘state’ – ‘enterprise’ – ‘trade union’ – ‘Bundesbank’ – ‘antitrust agency’ etc.), less in the manner of concerted actions, planning councils, conversational rounds than in the manner of word-rich and silent mutual notifications of expectations and behaviour.¹⁰¹

Gunther Teubner comments:

Thus it was not the constitutional law of the democratic social that formed the Federal constitution of Germany: instead it was neo-corporatist power compromises between rival social groups, classes, strata organized interests, collective actors … and it would then no longer be plausible to restrict the constitutional concept to the political state constitution.¹⁰²

The cited passage needs to be read on the background of Wiethölter academic Heimat in the somewhat forgotten discipline of private international law (conflicts law in the Anglo-Saxon parlance),¹⁰³ which remained a subtext of his moves to economic law,¹⁰⁴ constitutional law and, most notably, legal theory.¹⁰⁵ In the same year, 1977, Wiethölter generalised conflicts law thinking.¹⁰⁶ It was now to become

fruitful in conflicts between other norm complexes, areas of law, state and social constitutions … [it thereby becomes] possible to prioritise such general collisions of laws in the juridical reconstruction of social contradictions … [H]owever, the social contradictions do not appear as such, but rather in a specifically juridical transformation.¹⁰⁷

In Gunther Teubner’s reconstruction of Wiethölter’s synthesis of conflicts law, social and legal theory affinities with both Wilkinson’s material constitution and my plea for a reconstruction of European law as conflicts law¹⁰⁸ seem apparent. However, much more explicitly than Wilkinson, Wiethölter defends the law’s normative proprium: ‘“Reciprocity” and “impartiality” have to govern decision-making – and this requires appropriate “fora, procedures and criteria”.’¹⁰⁹ This, too, is no recipe, but an indispensable reminder.