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Fabian Bohnenberger and Christian Joerges

This chapter discusses the fundamental tensions between economic globalization and democratic politics in the field of international trade. New bilateral and regional trade agreements increasingly incorporate other ‘trade-related’ policy areas and threaten to constrain state action and democratic politics. The move towards deeper and more comprehensive trade deals has greatly accentuated grievances and is of exemplary importance in the realms of transnational governance. The chapter examines the decoupling of these agreements from national and democratic control and the resulting legitimacy impasses of transnational governance, based upon the theoretical frameworks of Karl Polanyi and Dani Rodrik. Arguing that politics is not a mistake that gets in the way of markets, the authors submit their own conceptualization of transnational legitimacy. In doing so, they suggest a new type of conflicts law which does not seek to overcome socio-economic and political diversity by some substantive transnational regime, but responds to diversity with procedural safeguards, thus ensuring space for cooperative problem-solving and the search for fair compromises.

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Alexia Herwig and Christian Joerges

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Michelle Everson and Christian Joerges

If conceived of as a reconstruction of the genesis and history of European legal studies, this chapter cannot but disappoint. The quality of critical legal thought within European studies may never compare with the strength and confidence we recall of the critical legal studies movement of the 1970s. The study of European law is specific in that it is not characterised by schismatic divisions between affirmative rationalisations and critical countervisions; what we instead observe over many decades is a strong and widely shared commitment to the notion that ‘more Europe’ is an unstoppable normative good. Every stage of the integration process has been marked by quests for renewal, yet these have only ever been critical of the direction and mode of travel, and not of travel itself. Our reconstruction accordingly focuses less upon instances of critique, and more upon the underlying question of why European studies exhibit such a large degree of critical continuity, matching the lack of a constitutional moment in Europe. Even the decade of crisis has not shaken the mindset of the wide majority community of European lawyers. Contrary to prevailing complacency we do not believe that we are witnessing the emergence of a new normalcy. We are by no means sure that the crisis will finally bring about a true constitutional moment; but, in a critical moment of our own, we are certain that we are now experiencing a theoretical moment, within which inherited legal beliefs must be questioned and the refoundation of Europe be envisaged.

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Christian Joerges, Vladimir Bogoeski and Lukas Nüse

This chapter addresses, in a new fashion, the long-standing problem of the relationship between the ‘economic’ and the ‘social’ in Europe before and after the Maastricht Treaty. The authors argue in particular that the current - problematic - state of affairs of the relationship between the two fundamental elements of European integration has been caused by an imperfect compromise between two competing constitutional conceptions. The weakness of this compromise is well reflected in the inadequacy of the measures enacted to counter the economic crisis. To substantiate this argument the authors analyse, in the last part of the chapter, the three countermoves of the Commission: the European Pillar of Social Rights, the revision of the Posted Workers Directive and the idea of an European Unemployment Scheme.