The EU’s 2022 Digital Services Act (DSA) requires large online platforms to assess and mitigate risks to various vaguely-defined and contestable values, including fundamental rights; public health and security; civic discourse; and people’s mental and physical wellbeing. The scope of these provisions is thus incredibly broad and they have unsurprisingly attracted significant academic interest. So far, most scholarship has taken a broadly functionalist approach: it accepts the basic premise that certain social impacts of platforms constitute risks which must be managed, and evaluates the DSA’s capacity to achieve this ‘effectively’.

In contrast, this article aims to step back and critically reflect on the underlying conceptual and institutional framework of systemic risk management, based on an explicitly social constructionist understanding of risk as a technology of governance shaped by competing political agendas. Drawing on critical literature on risk regulation from various disciplines and regulatory fields, it identifies two key themes. First, discursively framing political problems as risks tends to exclude issues less amenable to the ‘risk’ framing; to privilege technocratic expertise; and to depoliticise distributive and ideological conflicts. Second, the DSA’s institutional approach to risk regulation delegates primary responsibility for identifying and managing risks to regulated companies, creating well-documented risks of capture. Overall, both themes point to similar conclusions: the systemic risk framework will be highly favourable to the interests of the powerful multinational corporations it seeks to regulate.

In conclusion, however, the article notes that platform regulation may pose distinctive challenges that are not well illuminated by scholarship on risk regulation in other fields – notably because of the widely-recognised possibilities for political abuse of more prescriptive regulation of online media. It suggests some avenues for further research into risk politics in the specific context of online media platforms, in particular drawing on scholarship on risk management in critical security studies.

This article pursues re-constructive and explanatory objectives which are embedded in a theoretical and normative agenda. The introduction specifies its beginnings including biographical notes. The following conceptual history of the law of the integration project distinguishes three stages in which three distinct varieties of economic constitutionalism have been pursued, which all remained defective when measured against the commitments to democracy, social justice, and the rule of law. These defects deepened in the managerial responses to the financial crisis of 2008. Throughout the article, a counter vision of conflicts-law constitutionalism is developed step by step. The final section of the article seeks a theoretical backing for this counter vision in Lisa Herzog’s theory of ‘democratic institutionalism’. The epilogue sketches out how the project will continue.

How has the European Union been integrated in the past? Legal academics have traditionally pointed to the Court of Justice and to the broader idea of an ‘integration-through-law’. Through its supranational jurisprudence, the Court – not the EU legislature – was thus placed at the centre of the European integration project. The underlying reasons for this dominance of constitutional ‘law’ over legislative ‘politics’ have thereby been the subject of three famous explanations: the ‘equilibrium theory’ (Weiler), the ‘asymmetry theory’ (Scharpf) and the ‘over-constitutionalisation theory’ (Grimm). What are the merits of these grand theories of European integration when measured against the historical record? This article hopes to explore this question in the context of the internal market. Its historical revision begins with an analysis of the respective spheres of normative and decisional supranationalism during and after a foundational period (Sections 2 and 3). This is followed by an examination of the meaning and significance of the Cassis de Dijon judgment in the late 1970s. Through this revolutionary case, a dialectical relationship between the EU Court (‘law’) and the EU legislator (‘politics’) emerges (Section 4) that ultimately leads to the spectacular rise of EU legislation (Section 5) after the SEA. This transformational relationship will provide the critical lens for a historical revaluation of the three grand theories of legal integration (Section 6).

Jiří Přibáň’s work deals with constitutional imaginaries, starting from the concept of social imaginaries as entities describing functionally differentiated modern society as one polity. Přibáň’s conception perceives constitutional imaginaries in terms of social systems, representing a socio-legal paradox, since constitutional imaginaries express both the constitution of social unity and its pluralism of values. The aim of this contribution is to explore the link between Přibáň’s work and some aspects of Luhmann and Teubner’s contributions to the theory of social systems. By highlighting these features, the Author tries to argue that contemporary imaginaries can work as constitutional forces that drive contemporary legal pluralistic regimes, including the European one, to the societal unity by warranting a systemic difference.

In this contribution we ask how Přibáň’s theoretical choices shape the capacity of ‘European constitutional imaginaries’ to account for the ever more necessary work of recognition and redistribution within European society. While ‘European constitutional imaginaries’ reveal the intricate ideologies at play within European law and politics, as well as their power in motivating dominant currents of European political life, the project remains limited in that it accepts essential tenets of functional differentiation in society, obscuring the conditions of possibility for the formation of differentiated systems. Put differently, ‘European constitutional imaginaries’, both as forms of life and analytic concepts, have difficulty in conceiving the frontiers of imaginaries, their beginning and end, their formation and transformation—and in so doing, risk naturalizing their initial differentiation as a priori excluded from political contestation.

This article approaches the issue of the European Union’s (EU) democratic deficit from a Marxist perspective. This issue has been central to the exponential rise of Euroscepticism that influenced processes like Brexit and Grexit (despite the latter’s frustration), as well as the rise of explicitly anti-EU national governments in European countries. This article shows that critiques of the EU’s democratic deficit (even cutting-edge ones, like the one placing emphasis on the notion of the ‘economic constitution’) are inadequate because the debate is already embedded in ideological compromise. Offering a brief exposition of the Marxist approach to the democratic form of the capitalist state, it attempts to show the limitations of critical approaches which overlook the issue of class rule and state power in their calls for democratisation. To do so, the article outlines the structural function and class character of the EU, as well as its role as a (supra-)state formation in the process of capital accumulation. Ultimately, it offers a Janus-faced critique of democratic deficit in Europe, one the one hand arguing that the critique of the EU economic constitution as neoliberal is limited because it fails to account for the scope of reform that the EU allows to respond to the challenges of the process of capital accumulation, while on the other concluding that the solution to the democratic deficit cannot simply be a return to nation-state democracy which is equidistant from actual self-government of the popular strata as its EU counterpart.

In current debates on the constitutional imaginary, different dimensions are stressed in distinct contributions, ranging from philosophical and legal–theoretical, to sociological and socio–legal approaches. To situate Jiří Přibáň’s work in this larger scheme of reflection on the imaginary, this article identifies a number of core angles. Unlike Přibáň’s systems theoretical interpretation of imaginaries, Castoriadis’s philosophy of creative imagination puts emphasis on uniqueness, on historical creation ex nihilo, or the creation of worlds without a precedent in the existing world and without presuming any clear function. This also means that imaginaries relate to forms of meaning that cannot be reduced to binaries, codes, or structural languages (legitimacy – illegitimacy) that keep society together, but rather relate to meaning that can never be fully articulated or theoretically entirely grasped and explained. However, Přibáň does not ultimately fully reduce constitutional imaginaries to functional vehicles as becomes clear in his acknowledgement of the polysemy and polyvalence of functionally differentiated society. From this perspective, the contemporary populist challenge to constitutionalism appears to be based on a struggle between technocratic forces promoting a modern, legal–rational imaginary of constitutionalism, whereas populist forces endorse a constitutional imaginary that is grounded in traditionalism and authenticity. This counter-constitutional populist challenge is not merely about a rejection of liberal democratic orders but regards the questioning of the rational–scientific imagination as such.

Many legal scholars and practitioners consider the German judiciary to be a reliable and cooperative interlocutor of the Court of Justice. German judges refer more and more constructive references than their peers in other Member States – or so the prevailing narrative runs. The present study seeks to dispel and correct this image as reference champion. It identifies three challenges to the preliminary reference procedure in German courtrooms: a complex procedural framework restricting the discretion and obfuscating the duty to refer (1), a reluctant judiciary (2), and instrumental uses as a tool of judicial contestation (3). The study proceeds in four steps. Starting from a doctrinal perspective, it sketches the intricacies of the German procedural framework and analyses how it may obstruct preliminary references. Taking a quantitative perspective, it places German references in relation to other indicators, such as population size, incoming cases, or the number of judges. Under such a lens, Germany finds itself at the lower end of the spectrum. This reluctance can be traced back to a bundle of factors, such as judicial hierarchies, workload, or lack of knowledge and trust. Shifting to a qualitative perspective, the study then explores the instrumental uses of references as a tool of judicial contestation, both externally regarding the EU and internally regarding the German judicial architecture. The study concludes by focusing on a new actor in the reference game – the federal constitutional court. Its two senates have approached the preliminary reference procedure with diametrically opposed logics: the second senate underlines the power of the last, the first senate the potential of the first word. It remains to be seen whether the first senate will carry the day and herald – as a model for the entire German judiciary – a more cooperative future for the preliminary reference procedure.

All discussants of this book symposium on the monograph Constitutional Imaginaries address different aspects of constitutionalism beyond national and international limits and engage with the concepts of transnational law and global society to test and contest the book’s central argument according to which specific European constitutional imaginaries are internally constituted by different social systems and therefore paradoxically represent the unity of European society through their specific semantics. In this rejoinder, I focus on some overlapping themes, namely the process of social differentiation, its impact on both social and legal pluralism, and the paradox of legitimation in societal constitutionalism to respond to their comments and criticisms.

In this paper we identify and discuss three different strategies for taking up intersectionality in the space of European private law, ie, liberal ideal theories of social and private law justice, liberal nonideal theories of reparation, and private law abolition. While we caution for how intersectionality is taken up in the European space of private law, these strategies yield insights about how intersectionality may recast (European) private law’s role as a potential site to advance, or thwart, pursuits of justice. The three strategies imply (potentially radical) shifts in how legal scholars may understand private law justice. We suggest that (European) private law abolition might be the most promising starting point to think intersectionality’s significance for recasting dominant understandings of private law’s relation to (in)justice in the EU context.

The article proposes a historical materialist reading of the European Union, placing the class struggle at the heart of the analysis of the EU project. A central idea is that historical development is the result of social conflict, a ubiquitous force which materialises unevenly at multiple levels, nationally and internationally. As far as the European Union is concerned, it is argued that class struggle occurs predominantly at the level of Member States rather than transnationally at the level of the Union. This reading has several repercussions. An important repercussion is that by anchoring the understanding of the EU to the struggle born out of the material clash between interests of national collective forces, this contribution distances itself from liberal idealistic readings of the Union that see the EU as an example of Kantian cosmopolitan right. Where the latter approach sees the European Union as a real-life example of universal hospitality, historical materialism sees a Union divided along class- and national lines. The article supports that the latter understanding is in a better place to describe the nature of the EU project.

Constitutional imaginaries are internal symbolic constructs of self-constituted positive law and politics which make it possible to imagine and describe functionally differentiated modern society as one polity and distinguish between legal and political legitimacies and illegitimacies in this polity. Imaginaries, therefore, are not limited by the unity of topos-ethnos-nomos and evolve in national as well as supranational and transnational constitutions. In the context of European constitutionalism, general imaginaries of the common market, universal rights and democratic power are thus accompanied by specific imaginaries of European integration through legal pluralism, administrative rationality of calculemus, economic imperium of prosperity and democratically mobilised non-state community. These imaginaries invite constitutional theorists to rethink the juridical concept of constitution and employ sociological and social theoretical perspectives of constitutionalism within and beyond the state. In their specific ways, these imaginaries, which obviously can be detected at national levels but play a particularly important role at transnational levels of European integration, represent the paradox of modern society constituting its unity as difference, yet preserving its imaginary capacity to describe such differentiation as unity. Like any other society, European society thus represents its collective self to itself only through the specific imaginaries spontaneously constituted by its different systems.

The core of the contract between economic and monetary union is set in not so much the formally legal, if economically irrational and practically contentious, divide of the Treaties, but rather, the rules for governing the right balance of EMU are found in its economic governance framework, set up to condition national budgetary policies into optimal function in service of Union monetary policy. Within those rules we can differentiate two ‘worldviews’ of constitutionalism. The first we may refer to as ‘optimal function EMU’ where sovereigns are equal, democracies may pick their own socio-economic policy and make equally valid claims to be managed by the conflicts law approach of cooperation within the preventive arm of the European Semester based on Article 121 TFEU, and where we may pretend the economic-monetary divide erected by law is a real, tangible phenomenon. The alternative version of constitutionalism is found beyond ‘optimal function EMU’, in fact, as soon as any risk to the model arises. This worldview institutes a strict legal hierarchy that establishes monetary supremacy over the economic realm. Within this setup, the very existence and proper function of the single currency rationalise the ultimate truth – that all Member States are equal, but some are more equal than others. Can conflicts law constitutionalism offer a way to recalibrate unity and diversity in a format fit for the purposes of the contemporary financial and economic context, while simultaneously re-claiming the space for national collective choice and protecting Union values?

In this essay, I reflect on the evolving role of the European Union (EU) as a global regulatory state against the backdrop of Christian Joerges’s influential work on European constitutionalism. Engaging with Joerges’s intellectual oeuvre represents a personal moment in my academic journey, having come of age as a scholar under his guidance during my PhD studies at the European University Institute in Florence. I therefore would like to use the opportunity to critically engage with his work while situating my scholarly analysis within the broader context of my personal experiences across Europe and how they have shaped my focus on political power beyond traditional state politics. The essay begins with a personal reflection on the interplay between the personal, the political, and the academic in my work on democracy in the EU regulatory state. Subsequently, I delve into Joerges’s theory of conflicts-law-constitutionalism, examining its strengths and weaknesses, as well as its relevance for understanding the new geopolitical turn in EU external regulation and its implications for democratic constitutionalism.

Why should one expand Christian Joerges’s pioneering concept of ‘Europe’s conflicts-law constitution’? The European constitution should consistently incorporate the double plurality of Europe because, for centuries, Europe has been governed by two powerful pluralities that are orthogonal to each other, but at the same time closely interpenetrate each other. Europe’s material constitution is characterised not only by the conflicts between nation-state policies, but also by the deeper conflicts between different intrinsic normativities of societal institutions.

The European conflicts-law constitution should therefore not only realise the transnationalisation of the ‘political’ constitutions of the nation states and their underlying conflicts, but also a ‘societal’ constitution that inscribes itself into the conflicts of previously unconstitutional worlds of meaning. On the basis of this extension, Joerges’s ideas can be made fruitful beyond the conflicts-law constitution that he confined to the EU‘s political system. If their extension to sectoral constitutions of Europe is taken seriously, the three strategies, which Joerges developed for conflicts between nation states, are also promising for conflicts triggered by the diversity of functional systems. In three case constellations, the article outlines how Joerges’ methods can be successfully applied in the most recent European sectoral constitution – in ‘Europe’s digital constitution’.

Few issues remain as fraught as the relationship between European integration and national welfare states. For too long, Social Europe was an afterthought, relegated to the soft domain of the open method of coordination, while the formation of the single market proceeded with the full force of European law and institutions. Since the 2008 financial crisis, the social has returned—not just in Europe, but in all regions grappling with what comes after neo-liberalism. In this response, I turn to Christian Joerges’s seminal articulation of the conflict of laws as Europe’s constitutional form as a contribution to this current theoretical task. Central here has been how Joerges has staged a dialogue between theories of European law and the critique of the market order developed by the Hungarian philosopher and social theorist Karl Polanyi. I argue that Joerges picks up on democratic undercurrents in Polanyi’s theory that move beyond the opposition between nationally bounded welfare states and transnational private economic rights. Rather, we can see the social as a domain of multi-level democratic conflict mediation. While Joerges respects the ordoliberal vision of an economic constitution, he draws attention to their democratic deficits. Indeed, both the ordoliberals and Polanyi would reject the EU’s technocratic instrumentalisation of the market as a device for restructuring national social systems in a way that both deformalises European law and undermines its democratic legitimacy. I conclude with some speculative remarks about how the EU could be seen as introducing new dimensions of conflict into an emerging post-neoliberal order.

Christian Joerges is a scholar whose work spills over the conventional boundaries between public and private law, social science and legal theory, law and public policy, empirical inquiry and normative philosophy. This essay brings into focus Joerges’s under-appreciated role as a prescient, critical intellectual biographer of European integration. It argues that Joerges’s work has helped to diagnose, explain, and dismantle three misconceptions or myths with which European integration has been saddled from its formative decades. These misconceptions are (1) that the European integration project is ‘self-legitimating’ and therefore politically neutral; (2) that the delegation of decision-making authority to supranational institutions is constitutionally neutral; and (3) that there can be an epistemologically neutral, authoritative disciplinary perspective from which to comprehend European integration. Breaking the hold of these misconceptions is an essential step towards gaining a critical understanding of the promises and limitations of European integration today.

How does ‘Europe’ cope with its dark past and how does it handle its internal conflicts and contradictions? This is the question at the heart of Christian Joerges’s 600-page opus magnum Conflict and Transformation – Essays on European Law and Policy where he advances his reconceptualization of EU law as a particular form of conflicts law as his answer. But the problem constellation the EU is faced with in today’s world is well-beyond what can be encapsulated by a conflicts law perspective. As an alternative the idea of transformative law is introduced and its potential for acting as a basis for the reconceptualization of the EU legal order discussed. Joerges’s oeuvre moreover has a blind angle, as it is internalistic in nature. But rather than internal forces driving the integration project forward the structural trigger and driver of European integration should rather be found in the reconfiguration of Europe’s relations with the wider world. From (de-)colonialisation to todays ‘fragmented globalisation’ it is the structural reconfigurations of Europe’s relationships to the rest of the world which is the central driver of the integration process.

This review essay forms a contribution to the Dialogue & Debate symposium on Christian Joerges’s volume Conflict and Transformation (Hart 2022). The specific angle of this article is an interdisciplinary one that conceives of Joerges’s work as a boundary-crossing exercise between law and the social sciences. Aspects highlighted are the inspiration that his work finds in responding to Europe’s vocation, or realising the latter’s normative potential; the law-in-context quality of the approach, which combines inside and outside perspectives on what the law is and does, how it motivates and what it means; and the two-pronged ambition to take the law seriously as a legitimating force and to question, at the same time, the power of economic ‘facts’ and arguments, which sometimes overrule what seems legitimate. Moreover, this article considers the relevance and implications of two intellectual influences on Joerges’s work, one a more formative one (Habermas) and one resonating with recent experiences of crisis (Polanyi), and it follows the journey of Joerges’s reconstructive approach within European studies: between integration theory, governance approaches, and rethinking democracy in postnational constellations. As Joerges himself concedes, the normative vision that this yielded for European law and politics was overtaken by actual developments in the context of the monetary union, and conflicts-law constitutionalism became more of a counterfactual appeal. This article outlines how the critical edge of this approach could be enhanced by taking perspectives from critical political economy on board, which would also facilitate countering economic arguments.