Edited by Hans-W. Micklitz
Chapter 9: At the Roots of European Private Law: Social Justice, Solidarity and Conflict in the Proprietary Order
Alessandro Somma 1 1.1 THE EUROPEAN UNION AS A PROPRIETARY ORDER The Social Market Economy as an Irenic Order The ‘social market economy’, now indicated by the Treaty of the European Union as its cornerstone (art. 3), has a history which, though frequently concealed, deserves to be touched upon. The expression ‘social market economy’ was coined in the context of the inflamed debate regarding the economic constitution that Germany had to adopt after the fall of Nazism. Two alternative ideas were confronted: ‘social democracy’, which favored economic planning and direct State intervention,1 and ‘neoliberal democracy’, whereby intervention was indirect in the sense that it meant developing the normative framework to assure market competition.2 Even though social democracy was met with favor by the main German political parties, neoliberal democracy was chosen, due to the pressures from the US occupation forces and the logic of cold war.3 The neoliberal perspective is a systemic one: economic freedoms are fostered when they promote competition and are opposed when they hinder it.4 This view draws from ordoliberalism, developed in the Nazi era and widely employed by the regime within the reform of economic freedoms. For this Arndt, A. (1946), ‘Planwirtschaft’, Süddeutsche Juristenzeitung, 1, 169 ff. Böhm, F. (1946), ‘Die Bedeutung der Wirtschaftsordnung für die politische Verfassung’, Süddeutsche Juristenzeitung, 1, 141 ff. 3 See Brüggemeier, G. (1979), Entwicklungen des Rechts im organisierten Kapitalismus, vol. 2, Frankfurt am Main: Syndikat, pp. 249 ff. 4 Eucken, W. (1949), ‘Die Wettbewerbsordnung und...
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