ON THE LEGITIMACY OF EUROPEANISING PRIVATE LAW Considerations on a Justice-making Law for the eu multi-level System Christian Joerges Introduction The Europeanisation of private law is very much a topical theme. And although this theme no longer very new, it has, in the last three years, developed a new dynamic. Anyone taking it up with the intention or hope of keeping up with the pace of legal policy development and remaining on top of the current stage of the academic debate is letting himself in for a race which he will inevitably feel like the unfortunate hare which, despite all its efforts, kept on arriving too late: something else will have changed or articles whose relevance has to be assessed first will have appeared. Anyone seeking to dodge such a race by specialising in the general is not necessarily better off. Has not everything already been said? Is it enough to add as Karl valentin did in a ceremonial address, " Quite so, but not by everyone? Surveys of the development of the law, legal policy and the academic debate remain meaningful if and because every new systematisation of the material takes some constructive steps. Admittedly, the more immense the material appears, the more time consuming it becomes to sift through it. In the present context, I have to have recourse to a form of reconstruction of the factual position that allows me to refer to previous work, 2 which I now sharpen so as to relate the debates on the Europeanisation of private law to the basic problem of the legitimation of law production in the EU (I). I distinguish between three strategies of legitimation and, in the next section(Il), go on to test and to query their viability on the basis of three sets of examples. These theses and antitheses are intended to pave the way for a synthesis in the closing section (ID) I Three competing patterns of legitimation Europe expects much of the law, exposing it to changes from top to bottom -and it has to justify these challenges itself. This is a requirement that may sound like a matter of course I Translated by lain F. Fraser, EUl Florence. A preliminary German version of this essay was presented ata workshop on pty Institute in April 2002. That text was rewritten for the lus Com m ference i e private law theory organised in co-operation with Gunther Teubner( Frankfurt a M )att European Uni Amsterdam on 28-29 November 2002, and subsequently revised again. I would like to thank many participants of the Amsterdam conference and the contributors to the workshop in Florence fortheir comments and suggestions. I am in particular indebted to Christoph Schmid(Florence/Munich), much more than the references to his work in my footnotes can indicate The artificially created term in the subtitle is a translation of the German construct Recht-Fertigungs-Recht, a notion used by Rudolf Wietholter in a recent essay: " Recht-Fertigungen eines Gesellschafts-Rechts (forthcoming in Christian Joerges and Gunther Teubner(eds ) Rechtsverfassungsrecht Recht-Fertiging zwischen Privatrechtsdogmatik und Gesellschaftstheorie, Baden-Baden: Nomos). lain F. Fraser suggests the translationjust-ifications of a law of society, adding that the German Recht-Fertigung can be etymologised as making/manufacturinglaw/right. Justi(ce)-fication'or justice-making law' may reta in a touch more of the German term's message But it needed a connoisseurof Roman law, namely Wolfgang Ernst(Bonn), to remind me that justumfacere is the common root of Recht-Fertigung and justification Esp Ch Joerges and G. Bruggemeier, Europa isierung des Vertrags und Haftungsrechts, in: P -Ch Muller-Graff (ed. ) Gemeinsames Privatrecht in der Europaischen Gemeinschaft, 2nd edn., Baden-Baden Nomos 1999, 301 ff, Ch Joerges, The Impact of European Integration on Private Law: Reductionist Perceptions, True Conflicts and a New Constitutionalist Perspective, European Law Journal3(1997),378
ON THE LEGITIMACY OF EUROPEANISING PRIVATE LAW: Considerations on a Justice-making Law for the EU Multi-level System1 Christian Joerges Introduction The Europeanisation of private law is very much a topical theme. And although this theme is no longer very new, it has, in the last three years, developed a new dynamic. Anyone taking it up with the intention or hope of keeping up with the pace of legal policy development and remaining on top of the current stage of the academic debate is letting himself in for a race in which he will inevitably feel like the unfortunate hare which, despite all its efforts, kept on arriving too late: something else will have changed or articles whose relevance has to be assessed first will have appeared. Anyone seeking to dodge such a race by specialising in the general is not necessarily better off. Has not everything already been said? Is it enough to add, as Karl Valentin did in a ceremonial address, ‘Quite so, but not by everyone’? Surveys of the development of the law, legal policy and the academic debate remain meaningful if and because every new systematisation of the material takes some constructive steps. Admittedly, the more immense the material appears, the more time consuming it becomes to sift through it. In the present context, I have to have recourse to a form of reconstruction of the factual position that allows me to refer to previous work,2 which I now sharpen so as to relate the debates on the Europeanisation of private law to the basic problem of the legitimation of law production in the EU (I). I distinguish between three strategies of legitimation and, in the next section (II), go on to test and to query their viability on the basis of three sets of examples. These theses and antitheses are intended to pave the way for a synthesis in the closing section (III). I Three competing patterns of legitimation Europe expects much of the law, exposing it to changes from top to bottom - and it has to justify these challenges itself. This is a requirement that may sound like a matter of course, 1 Translated by Iain F. Fraser, EUI Florence. A preliminary German version of this essay was presented at a workshop on private law theory organised in co-operation with Gunther Teubner (Frankfurt a.M.) at the European University Institute in April 2002. That text was rewritten for the Ius Commune Conference in Amsterdam on 28-29 November 2002, and subsequently revised again. I would like to thank many participants of the Amsterdam conference and the contributors to the workshop in Florence for their comments and suggestions. I am in particular indebted to Christoph Schmid (Florence/Munich), much more than the referenc es to his work in my footnotes can indicate. The artificially created term in the subtitle is a translation of the German construct Recht-Fertigungs-Recht, a notion used by Rudolf Wiethölter in a recent essay: ‘Recht-Fertigungen eines Gesellschafts-Rechts’ (forthcoming in Christian Joerges and Gunther Teubner (eds.), Rechtsverfassungsrecht. Recht-Fertiging zwischen Privatrechtsdogmatik und Gesellschaftstheorie, Baden-Baden: Nomos). Iain F. Fraser suggests the translation ‘just-ifications of a law of society’, adding that the German Recht-Fertigung can be etymologised as making/manufacturing law/right. ‘Justi(ce)-fication’ or ‘justice-making law’ may retain a touch more of the German term’s message. But it needed a connoisseur of Roman law, namely Wolfgang Ernst (Bonn), to remind me that justum facere is the common root of Recht-Fertigung and justification. 2 Esp. Ch. Joerges and G. Brüggemeier, Europäisierung des Vertrags und Haftungsrechts, in: P.-Ch. Müller-Graff (ed.), Gemeinsames Privatrecht in der Europäischen Gemeinschaft, 2nd edn., Baden-Baden: Nomos 1999, 301 ff.; Ch. Joerges, The Impact of European Integration on Private Law: Reductionist Perceptions, True Conflicts and a New Constitutionalist Perspective, European Law Journal 3 (1997), 378 ff
which, indeed, is really a claim raised in the treaties and treaty amendments, but is, in reality in need of clarification and hard to meet. Why? The process of European integration has been seen as forming and formatting a sovereignty association of a special nature (Herrschafisverband eigener Pragung)as M. Rainer Lepsius puts it-a happy formulatio since, by simply using the Weberian category of Herrschaft(domination/sovereignty ),it designates a continuing key problem in the European project. This Herrschafisverband is dependent on recognition by its subjects-and this de facto dependency has continued to become visible and perceptible. 4 Social scientists ought not, and we lawyers may not, satisfy ourselves with an empirical concept of legitimacy: Are Europes sovereignty claims justifiable as to deserve our recognition, too? This is a question which we have to ask ourselves, irrespective of whether we bring in Jurgen Habermas for the purpose or not law"from the outset, namely, in the very stage of the establishment of the EEC. It is y o And, in fact, legal science did ask the question of the basis of the valid ity of Europe impression that this happened more fundamentally in Germany than elsewhere-not necessarily for good reasons, but certainly for compelling ones: the Federal Repu still a very young democracy at that time and could not be expected to call this achievement into question. At the same time, it was dependent on being included in Europe. The Basic Law of 1949, however, had anticipated such dilemmas and provided a siby llic and prudent response it had constitutionalised both principles, the inviolability of democracy(in Article 79 III)and its openness to integration(in Article 24). Is this a paradox documenting the intrinsic contradictoriness of all law? It is, at any rate, a challenge around which all European law to date must turn and which keeps its interpreters so restless. I wish to distinguish between three sets of attempts to find fixed points here and give the European process a firm normative I 1 Market rational ity as a principle of (constitutional) law? The first, ordo-liberalism'(a German version of neo- liberalism), was ready even before the EEC existed. It had been developed in the turmoil of the Weimar Republic, and posited that a the opportunistic, discretionary encroachments of politics o uted,)so as to be protected from This trad ition survived the Third 3 For this German term, see M. Rainer Lepsius, Die Europaische Union als Herrschaftsverband eigener Pragung(The European Union as a Sovereignty Association of a Special Nature), in: Ch. Joerges, Y. Meny and J HH. Weiler(eds ) What Kind of Constitution for What Kind of polity? Responses to Joschka Fischer Florence: The robert Schuman Centre for Advanced Studies at the European University Institute/Cambridge, Ma:HarvardLawSchool2000,203ff.(213ff.);<http://www.jeanmonnetprogram.org/papers/00/svmp.htmi> This has now been given thorough treatment by the explanatory disciplines, most recently in KJ. Alter, Establishing the Supremacy of European Law: The Making of an International Rule ofLaw in Europe Oxford/New York: Oxford University Press 2001; A. Wiener, They Just Dont Understand! Finality and Compliance: Opposing Rationales in the European Constitutional Debate, MS Belfast 2002 For a very pointed recent restatement, see J. Habermas, Remarks on Legitimation through Human Rights, in: id, The Postnational Constellation, Cambridge: Polity 2001, 113 ff, 113. The whole issue is systematically discussed in Ch. Jetzlsperger, Legitimacy through Jurisprudence? The Impact of the European Court of Justice on the Legit macy of the European Union, EUl Working Paper Law 12/2003 Cf. on this tradition D.J. Gerber, Constitutionalising the Economy: German Neo-Liberalism Competition Law and the New Europe, American Journalof Comparative Law 42( 1994), 25 ff, w. Sauter, Competition Law and Industrial Policyin the EU, Oxford: Clarendon Press 1997, 26 ff.; oddly(and significantly ) this tradition hardly appears in political science and sociology. A remarkable exception is Ph Manow, Modell Deutschland asan Interdenom inational Comprom ise: Program for the Study of Germany and
which, indeed, is really a claim raised in the treaties and treaty amendments, but is, in reality, in need of clarification and hard to meet. Why? The process of European integration has been seen as forming and formatting a ‘sovereignty association of a special nature’ (Herrschaftsverband eigener Prägung) as M. Rainer Lepsius3 puts it - a happy formulation, since, by simply using the Weberian category of Herrschaft (domination/sovereignty), it designates a continuing key problem in the European project. This Herrschaftsverband is dependent on recognition by its subjects - and this de facto dependency has continued to become visible and perceptible.4 Social scientists ought not, and we lawyers may not, satisfy ourselves with an empirical concept of legitimacy: Are Europe’s sovereignty claims so justifiable as to deserve our recognition, too? This is a question which we have to ask ourselves, irrespective of whether we bring in Jürgen Habermas5 for the purpose or not. And, in fact, legal science did ask the question of the basis of the validity of European law ‘from the outset’, namely, in the very stage of the establishment of the EEC. It is my impression that this happened more fundamentally in Germany than elsewhere - not necessarily for good reasons, but certainly for compelling ones: the Federal Republic was still a very young democracy at that time and could not be expected to call this achievement into question. At the same time, it was dependent on being included in Europe. The Basic Law of 1949, however, had anticipated such dilemmas and provided a sibyllic and prudent response: it had constitutionalised both principles, the inviolability of democracy (in Article 79 III) and its openness to integration (in Article 24). Is this a paradox documenting the intrinsic contradictoriness of all law? It is, at any rate, a challenge around which all European law to date must turn and which keeps its interpreters so restless. I wish to distinguish between three sets of attempts to find fixed points here and give the European process a firm normative basis. I.1 Market rationality as a principle of (constitutional) law? The first, ‘ordo-liberalism’ (a German version of neo-liberalism), was ready even before the EEC existed. It had been developed in the turmoil of the Weimar Republic, and posited that a free order for economic life must be legally shaped (‘constituted’) so as to be protected from the opportunistic, discretionary encroachments of politics.6 This tradition survived the Third 3 For this German term, see M. Rainer Lepsius, Die Europäische Union als Herrschaftsverband eigener Prägung (The European Union as a Sovereignty Association of a Special Nature), in: Ch. Joerges, Y. Mény and J.H.H. Weiler (eds.), What Kind of Constitution for What Kind of Polity? Responses to Joschka Fischer, Florence: The Robert Schuman Centre for Advanced Studies at the European University Institute/Cambridge, MA: Harvard Law School 2000, 203 ff. (213 ff.); <http://www.jeanmonnetprogram.org/papers/00/symp.html>. 4 This has now been given thorough treatment by the explanatory disciplines, most recently in K.J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule o f Law in Europe, Oxford/New York: Oxford University Press 2001; A. Wiener, They Just Don’t Understand! Finality and Compliance: Opposing Rationales in the European Constitutional Debate, MS Belfast 2002. 5 For a very pointed recent restatement, see J. Habermas, Remarks on Legitimation through Human Rights, in: id., The Postnational Constellation, Cambridge: Polity 2001, 113 ff., 113. The whole issue is systematically discussed in Ch. Jetzlsperger, Legitimacy through Jurisprudence? The Impact of the European Court of Justice on the Legitimacy of the European Union, EUI Working Paper Law 12/2003. 6 Cf. on this tradition D.J. Gerber, Constitutionalising the Economy: German Neo-Liberalism, Competition Law and the ‘New’ Europe, American Journal of Comparative Law 42 (1994), 25 ff.; W. Sauter, Competition Law and Industrial Policy in the EU, Oxford: Clarendon Press 1997, 26 ff.; oddly (and significantly), this tradition hardly appears in political science and sociology. A remarkable exception is Ph. Manow, Modell Deutschland as an Interdenominational Compromise: Program for the Study of Germany and
Reich, and marked the Federal Republic's sensibility in relation to economic policy as Ordnungspolitik. In the course of European integration, ordo-liberalism became the German dominant theory, with a peculiar double meaning for both components of the term: it dominated among professors of economic law and in many unofficial and officious policy statements; but the practice of law and of politics looked different. 8 The same holds true for the Community and its law: The 'four freedoms guaranteed in the eEC treaty, the opening up of the national economies, the bans on discrimination and the competition rules, were understood as a'decision' in favour of an economic constitution which met the conceptions of the ordo-liberal school with regard to the framework cond itions for a competitive market system. And the very fact that Europe was set in motion as a mere economic community conferred plausibility on the ordo-liberal argument: through the interpretation of the economic law provisions in the EEC Treaty as a legally established order committed to guaranteeing economic freedoms, the Community gained a legitimacy of its own, which was independent of the institutions of the democratic constitutional state, and from which legally bind ing policy commitments of this Community followed. 0 This was a framework which left room for alternatives. For many years, in fact, until the intenal market programmes of 1985 and the Single European Act of 1987, private law was left to itself. In the course of these initiatives, the legal principle of mutual recognition was discovered for private law, thus establishing the hope that the mechanisms of regulatory competition would promote an feconomic'rationalisation of private law in Europe. 2 At any rate, a European code of private law was also envisaged in the early 1990s. 3 The newest version of this idea is now, however Europe, Working Paper No. 00.3, Center for European Studies, Harvard University, Cambridge, MA, 2000 7 Again(see note 1 supra)a notion which tends to lose its meaning in translation. Economi govemancethetermusedinpertinentdocumentsoftheEuropeancOnventionwebsite(<http:european neuint>)may be as close as one can get Cf, for example, Ch Joerges, The Market without a State? States without Markets? Two Essays on the Law of the European Economy, EUI Working Paper Law 1/96, San Domenico di Fiesole 1996 (http:/leiop.orat/eiop/texte/1997-019a.htm>,shttp:/leiop.orat/eiop/texte/1997-020.htm>);goodGovernance in the European Internal Market: Two Competing Legal Conceptualisation of European Integration and their Synthesis, in: A. v, Bogdandy, P C. Mavroides and Y, Meny(eds ) European Integration and International Co ordination: Studies in Transnational Economic Law in Honour of Claus-Dieter Ehlermann, Den Haag/London/New York: Kluwer Law Intermational2002219 ff. were then to be understood as mere exceptions from the governing ordo E Admittedly, the many im portant policy fields exempted from Ord nungspolitik in the EEC Treaties Particularly significant, here, is A. Muller-Armack, Die Wirtschaftsordnung des Gemeinsamen Marktes, in: id, Wirtschaftsordnung und Wirtschaftspolitik, Freiburg i Br: Rombach 1966, 401 ff. Or more or less decisively preserved itself against relevant early special statutory private law (sonderprivatrechtliche)projects, which existed from the mid-1970s onward(and fit in with the picture sketched out here; cf. Ch Joerges, Zielsetzungen und Instrumentarien der Europaischen Verbraucherrechtspolitik. Eine Analyse von Entwicklungen im Bereich des Zivilrechts, Zeitschriftfuir Verbraucherpolitik3(1979),213 ff, cf. B Bomer, Die Produkthaftung oder das vergessene Gemeinschaftsrecht in: W.G. Grewe(ed ) Europaische Gerichtsbarkeit und nationale Verfassungsgerichtsbarkeit. Festschrift zum 70. Geburtstag von Hans Kutscher, Baden-Baden: Nomos 1981, 43 ff. For an official position, see Wissenschaftlicher Beirat beim Bundesm inisterium fur Wirtschaft Stellungnahme zum WeiBbuch der EG-Kommission uiber den Binnenmarkt( Schriften-Reihe 51), Bonn 198 Cf, in particular, E.-. Mestmacker, Die Wiederkehr der burgerlichen Gesellschaft und ihres Rechts Rechtshistorisches ournal10(1991), 177., 190 ff.; w. Tilmann, Eine Privatrechtskodifikation fur die Europaische Gemeinschaft, in: P.-Ch. Muller-Graff(ed. ) Gemeinsames Privatrecht in der europaischer
Reich, and marked the Federal Republic’s sensibility in relation to economic policy as Ordnungspolitik. 7 In the course of European integration, ordo-liberalism became the German ‘dominant theory’, with a peculiar double meaning for both components of the term: it ‘dominated’ among professors of economic law and in many unofficial and officious policy statements; but the practice of law and of politics looked different.8 The same holds true for the Community and its law: The ‘four freedoms’ guaranteed in the EEC Treaty, the opening up of the national economies, the bans on discrimination and the competition rules, were understood as a ‘decision’ in favour of an economic constitution which met the conceptions of the ordo-liberal school with regard to the framework conditions for a competitive market system.9 And the very fact that Europe was set in motion as a mere economic community conferred plausibility on the ordo-liberal argument: through the interpretation of the economic law provisions in the EEC Treaty as a legally established order committed to guaranteeing economic freedoms, the Community gained a legitimacy of its own, which was independent of the institutions of the democratic constitutional state, and from which legally binding policy commitments of this Community followed.10 This was a framework which left room for alternatives. For many years, in fact, until the internal market programmes of 1985 and the Single European Act of 1987, private law was left to itself.11 In the course of these initiatives, the legal principle of mutual recognition was discovered for private law, thus establishing the hope that the mechanisms of regulatory competition would promote an ‘economic’ rationalisation of private law in Europe.12 At any rate, a European code of private law was also envisaged in the early 1990s.13 The newest version of this idea is now, however, Europe, Working Paper No. 00.3, Center for European Studies, Harvard University, Cambridge, MA, 2000. 7 Again (see note 1 supra) a notion which tends to lose its meaning in translation. ‘Economic governance’, the term used in pertinent documents of the European Convention website (<http://europeanconvention.eu.int>) may be as close as one can get. 8 Cf., for example, Ch. Joerges, The Market without a State? States without Markets? Two Essays on the Law of the European Economy, EUI Working Paper Law 1/96, San Domenico di Fiesole 1996 (<http://eiop.or.at/eiop/texte/1997-019a.htm>; <http://eiop.or.at/eiop/texte/1997-020.htm>); ‘Good Governance’ in the European Internal Market: Two Competing Legal Conceptualisation of European Integration and their Synthesis, in: A. v. Bogdandy, P.C. Mavroides and Y. Mény (eds.), European Integration and International Coordination: Studies in Transnational Economic Law in Honour of Claus-Dieter Ehlermann, Den Haag/London/New York: Kluwer Law International 2002, 219 ff. 9 Admittedly, the many important policy fields exempted from Ordnungspolitik in the EEC Treaties were then to be understood as mere exceptions from the governing ordo. 10 Particularly significant, here, is A. Müller-Armack, Die Wirtschaftsordnung des Gemeinsamen Marktes, in: id., Wirtschaftsordnung und Wirtschaftspolitik, Freiburg i.Br.: Rombach 1966, 401 ff. 11 Or more or less decisively preserved itself against relevant early ‘special statutory private law’ (sonderprivatrechtliche) projects, which existed from the mid-1970s onward (and fit in with the picture sketched out here; cf. Ch. Joerges, Zielsetzungen und Instrumentarien der Europäischen Verbraucherrechtspolitik. Eine Analyse von Entwicklungen im Bereich des Zivilrechts, Zeitschrift für Verbraucherpolitik 3 (1979), 213 ff.; cf. B. Börner, Die Produkthaftung oder das vergessene Gemeinschaftsrecht, in: W.G. Grewe (ed.), Europäische Gerichtsbarkeit und nationale Verfassungsgerichtsbarkeit. Festschrift zum 70. Geburtstag von Hans Kutscher, Baden-Baden: Nomos 1981, 43 ff. 12 For an official position, see Wissenschaftlicher Beirat beim Bundesministerium für Wirtschaft, Stellungnahme zum Weißbuch der EG-Kommission über den Binnenmarkt (Schriften-Reihe 51), Bonn 1986. 13 Cf., in particular, E.-J. Mestmäcker, Die Wiederkehr der bürgerlichen Gesellschaft und ihres Rechts, Rechtshistorisches Journal 10 (1991), 177 ff., 190 ff.; W. Tilmann, Eine Privatrechtskodifikation für die Europäische Gemeinschaft, in: P.-Ch. Müller-Graff (ed.), Gemeinsames Privatrecht in der Europäischen
called the privatisation of private law. 4 I 2 Integration functionalism The ordo-liberal assignment of constitutional valid ity to the system of undistorted competition' was never dominating, certainly not beyond German borders. On the one hand the normative yardstick it provided seemed simply to narrow to provide guidance for the broad range of activities in which the European Economic Community was involved. Equally in the legal disciplines which started to explore the nature of that new phenomenon. That is certainly true for international law. 5 But even in German constitutional law (law of the state, Staatsrecht), the economic policy was widely held to be the responsibility of the democratically elected -government. This exactly was the challenge for the new discipline since this type of legitimacy, i.e., one based on a parliamentary majority, was not available for supranational political governance, it became imperative to find an alternative basis for gitimising supranational governance. Hans Peter Ipsen succeeded in developing a particularly interesting response. He characterised the(then) three European Communities special purpose associations for functional integration'(Zweckverbande funktioneller Integration). 6 The term special purpose associations' denoted areas not foreseen in the ordo-liberal concepts-without, however, exposing Community law to democratic requirements. As a special purpose association, Europe was supposed to deal with questions of technical realisation, i.e., administrative tasks that could -and had to- be conveyed to a supranational bureaucracy. 7 That all this has to do with private law may seem a far-fetched assertion, but it is raps, easier to understand if one bears in mind that Ipsen's functionalism was a continuation at the European level of the second trad ition in German economic law, which K W. Norr has called the concept of organised economy 8 This trad ition is agnostic as to Gemeinschaft, Baden-Baden: Nomos 1993, 485 ff. ee the programmatic title of the September 2002 Heidelberg conference of the German Association of Junger Zivilrechtswissenschafiler 2002 (Die Privatsierung des privatrechts-rechtliche Gestaltung ohp uch youngteachersofcivillawshttp:/www.iunge.zivilrechtswissenschaftler.de>,recentlypublishedasJAht staatlichen Zwang), Stuttgart [etc ] Boorberg 2003. Another school of thought, represented first and foremost by Reinhard Zimmermann, conceptualises private law as an autonomous body of la w freeing itself from national ties(and finding the way back to the ius commune europaeum); cf R Zimmermann, Das Romisch-Kanonische lus commune als Grundlage europaischer Rechtseinheit, Juristen Zeitung 1992, 8 ff.; Der Europaische Charakter des englischen Rechts. Historische Verbindungen zwischen civil law und common law, Zeitschriftfir Europaisches Privatrecht 1993, 4 ff.(reprinted in P -Ch. Muller-Graff(ed. ) Gemeinsames Privatrecht in der Europaischen Gemeinschaft, 2nd edn., Baden-Baden: Nomos 1999, 103 ff. ) see, also, id, Roman Lawand European Legal Unity, in: A.S. Hartkamp, M.W. Hesselink, E. Hondius, C Joustra and E du Perron(eds ) Towards a European Civil Code, 2nd edn., Nijmegen/Den Haag. Kluwer 1998, 21 ff, and id, Savignys Vermachtnis, in: P. Caropni andG Dilcher (eds ) Norm und Tradition. Welche Geschichtlichkeitfuirdie Rechtsgeschichte?, Koln/Weimarwien: Bohlau 1998, 281 ff. 15 For an instructive account of the legal history, see Ch. Tietje, Internationalisiertes venwaltung shandeln Berlin: Duncker Hum blot 2001. 50 ff. 86 ff.155 ff. 16 H.P. Ipsen, Der deutsche Jurist und das Europa ische Gemeinschaftsrecht, Verhandlungen des 43 Deutschen uristentages, Munchen: C H. Beck 1964, Vol. 2 L 14 ff. H P. Ipsen, Europaisches Gemeinschaftsrecht, Tubingen: Mohr/Siebeck 1972, 176 ff. K.W. Norr, Die Republikder Wirtschaft, Teil: Von der Besatzungszeit bis =ur GroBen Koalition
called the ‘privatisation of private law’.14 I.2 Integration functionalism The ordo-liberal assignment of constitutional validity to the ‘system of undistorted competition’ was never dominating, certainly not beyond German borders. On the one hand, the normative yardstick it provided seemed simply to narrow to provide guidance for the broad range of activities in which the European Economic Community was involved. Equally important, the idea of an ‘economic constitution’ was not accepted, or was simply unheard of, in the legal disciplines which started to explore the ‘nature’ of that new phenomenon. That is certainly true for international law.15 But even in German constitutional law (law of the state, Staatsrecht), the economic policy was widely held to be the responsibility of the - democratically elected - government. This exactly was the challenge for the new discipline: since this type of legitimacy, i.e., one based on a parliamentary majority, was not available for supranational political governance, it became imperative to find an alternative basis for legitimising supranational governance. Hans Peter Ipsen succeeded in developing a particularly interesting response. He characterised the (then) three European Communities as ‘special purpose associations for functional integration’ (Zweckverbände funktioneller Integration).16 The term ‘special purpose associations’ denoted areas not foreseen in the ordo-liberal concepts - without, however, exposing Community law to democratic requirements. As a special purpose association, Europe was supposed to deal with questions of ‘technical realisation’, i.e., administrative tasks that could - and had to - be conveyed to a supranational bureaucracy.17 That all this has to do with private law may seem a far-fetched assertion, but it is, perhaps, easier to understand if one bears in mind that Ipsen’s functionalism was a continuation at the European level of the second tradition in German economic law, which K.W. Nörr has called the concept of ‘organised economy’.18 This tradition is agnostic as to Gemeinschaft, Baden-Baden: Nomos 1993, 485 ff. 14 See the programmatic title of the September 2002 Heidelberg conference of the German Association of young teachers of civil law, <http://www.junge.zivilrechtswissenschaftler.de>, recently published as Jahrbuch Junger Zivilrechtswissenschaftler 2002 (Die Privatsierung des Privatrechts - rechtliche Gestaltung ohne staatlichen Zwang), Stuttgart [etc.]: Boorberg 2003. Another school of thought, represented first and foremost by Reinhard Zimmermann, conceptualises private law as an autonomous body of law freeing itself from national ties (and finding the way back to the ius commune europaeum); cf. R. Zimmermann, Das Römisch-Kanonische Ius commune als Grundlage europäischer Rechtseinheit, Juristen Zeitung 1992, 8 ff.; Der Europäische Charakter des englischen Rechts. Historische Verbindungen zwischen civil law und common law, Zeitschrift für Europäisches Privatrecht 1993, 4 ff. (reprinted in P.-Ch. Müller-Graff (ed.), Gemeinsames Privatrecht in der Europäischen Gemeinschaft, 2nd edn., Baden-Baden: Nomos 1999, 103 ff.); see, also, id., Roman Law and European Legal Unity, in: A.S. Hartkamp, M.W. Hesselink, E. Hondius, C. Joustra and E. du Perron (eds.), Towards a European Civil Code, 2nd edn., Nijmegen/Den Haag: Kluwer 1998, 21 ff., and id., Savignys Vermächtnis, in: P. Caropni and G. Dilcher (eds.), Norm und Tradition. Welche Geschichtlichkeit für die Rechtsgeschichte?, Köln/Weimar/Wien: Böhlau 1998, 281 ff. 15 For an instructive account of the legal history, see Ch. Tietje, Internationalisiertes Verwaltungshandeln, Berlin: Duncker & Humblot 2001, 50 ff., 86 ff., 155 ff. 16 H.P. Ipsen, Der deutsche Jurist und das Europäische Gemeinschaftsrecht, Verhandlungen des 43. Deutschen Juristentages, München: C.H. Beck 1964, Vol. 2 L 14 ff. 17 H.P. Ipsen, Europäisches Gemeinschaftsrecht, Tübingen: Mohr/Siebeck 1972, 176 ff. 18 K.W. Nörr, Die Republik der Wirtschaft, Teil I: Von der Besatzungszeit bis zur Großen Koalition
the ordo in its economic policy. To put this in a constitutionally positive way: it leaves the ordering of the economy to the democratically certified legislator. But, once again, the question arose how politics is to be legitimised if it outgrows this framework without being able to find a basis in international law? Ipsen's ingenious answer: Europe should be understood as institutionalising technocratic, functionalist rationality as the basis of and time, to be an adequate cause for what integration policy was actually doing. However, this ceased to be the case when the by now legendary programme to completethe internal market by 1992 was implemented. Europe then witnessed its own re-regulation'. 9 It started to complement its market build ing efforts with new regulatory strategies that, accord ing to Giandomenico Majone, would lead to the transformation of the European Community into a regulatory state”2 From such perspectives, private law proper'continues to be marginal. Both Europe lawyers and private lawyers shared this view the former were participating in renewing the whole regulatory framework for Europe's economy, the latter- most insistently the German academic community -complained about distortions of private law by European statutes but also emphasised that the core areas of private law continued to be in national hands the logic of integration policy and the logic of the development of private law were, seemingly operating autonomously. 21 1.3 Europe as a Sozialstaat(welfare state)and codifier of private law? Hard Code Now! This title sounded a bit like a battle cry and was meant to. Ugo Mattei who inscribed it on his banners, is more conciliatory and circumspect in reality than the slogan he chose is. A European civil code ought to lay down binding provisions, but be content with a minimal programme and be process orientated. Only in this way could it fit the social fabric of European capitalism. Would this, then, mean a code with deep enough foundations and high enough vaulting to include these social matters in its conceptual Germany, but his critique of the formalism of the German code still seems to be allve o edifice' to a sort of otto von Gierke redivivus? 23 Otto von gierke may be forgotten outsid topical 24 Tubingen: Mohr/Siebeck 1999, 5 ff.; cf earlier id, Zwischen den Muhlsteinen Eine Privatrechtsgeschichte der Weimarer Republik, Tubingen: Mohr/Siebeck 1988 See his regulating Europe: Problems and Prospects, Jahrbuchzur Staats-und Venwaltungswissenschaft3(1989),159 ff.; id(ed ) Deregulation or Re-Regulation? Regulatory Reform in urope and the United States, London: Routledge 1990, where he developed the corresponding legitim ising formula For an interim balance, see G. Majone, Regulating Europe, London: Routledge 1996.Since then, the conceptualedifice has been steadily refined, for example, in id, Non-majoritarian Institutions and the Limits of Democratic Govemance: A Political Transaction-Cost Approach, ournal of Institutional and Theoretical Economics 157(2001), 57 ff. For more details, see Ch Joerges and G. Bruggemeier, Europa isierung des vertrags und Haftungsrechts(note 2 supra); Ch Joerges, The Impact of European Integration on Private Law(note 2 supra) U Mattei, Hard Code Nowl, Global Jurist Frontiers 2(1)(2002), Article 1 O. v. Gierke, Die soziale aufgabe des Privatrechts, Berlin 1889, 17 Cf Ch. Schmid, On the Legitimacy of a European Civil Code, Maastricht ournalofEuropean and Comparative La 8(2001), 277
the ordo in its economic policy. To put this in a constitutionally positive way: it leaves the ordering of the economy to the democratically certified legislator. But, once again, the question arose how politics is to be legitimised if it outgrows this framework without being able to find a basis in international law? Ipsen’s ingenious answer: Europe should be understood as institutionalising technocratic, functionalist rationality as the basis of and contents of its law. And this type of output legitimacy seemed, for a considerable period of time, to be an adequate cause for what integration policy was actually doing. However, this ceased to be the case when the by now legendary programme to ‘complete’ the internal market by 1992 was implemented. Europe then witnessed its own ‘re-regulation’.19 It started to complement its market building efforts with new regulatory strategies that, according to Giandomenico Majone, would lead to the transformation of the European Community into a ‘regulatory state’.20 From such perspectives, ‘private law proper’ continues to be marginal. Both European lawyers and private lawyers shared this view: the former were participating in renewing the whole regulatory framework for Europe’s economy; the latter - most insistently the German academic community - complained about distortions of private law by European statutes but also emphasised that the core areas of private law continued to be in national hands: the logic of integration policy and the logic of the development of private law were, seemingly, operating autonomously.21 I.3 Europe as a Sozialstaat (welfare state) and codifier of private law? ‘Hard Code Now!’ This title sounded a bit like a battle cry and was meant to. Ugo Mattei, who inscribed it on his banners,22 is more conciliatory and circumspect in reality than the slogan he chose is. A European civil code ought to lay down binding provisions, but be content with a minimal programme and be process orientated. Only in this way could it fit the ‘social fabric of European capitalism’. Would this, then, mean a code ‘with deep enough foundations and high enough vaulting’ to include these social matters ‘in its conceptual edifice’ to a sort of Otto von Gierke redivivus? 23 Otto von Gierke may be forgotten outside Germany, but his critique of the formalism of the German code still seems to be alive and topical.24 Tübingen: Mohr/Siebeck 1999, 5 ff.; cf. earlier id., Zwischen den Mühlsteinen. Eine Privatrechtsgeschichte der Weimarer Republik, Tübingen: Mohr/Siebeck 1988. 19 See his Regulating Europe: Problems and Prospects, Jahrbuch zur Staats- und Verwaltungswissenschaft 3 (1989), 159 ff.; id. (ed.), Deregulation or Re-Regulation? Regulatory Reform in Europe and the United States, London: Routledge 1990, where he developed the corresponding legitimising formula. 20 For an interim balance, see G. Majone, Regulating Europe, London: Routledge 1996. Since then, the conceptual edifice has been steadily refined, for example, in id., Non-majoritarian Institutions and the Limits of Democratic Governance: A Political Transaction-Cost Approach, Journal of Institutional and Theoretical Economics 157 (2001), 57 ff. 21 For more details, see Ch. Joerges and G. Brüggemeier, Europäisierung des Vertrags und Haftungsrechts (note 2 supra); Ch. Joerges, The Impact of European Integration on Private Law (note 2 supra). 22 U. Mattei, Hard Code Now!, Global Jurist Frontiers 2(1) (2002), Article 1. 23 O. v. Gierke, Die soziale Aufgabe des Privatrechts, Berlin 1889, 17. 24 Cf. Ch. Schmid, On the Legitimacy of a European Civil Code, Maastricht Journal of European and Comparative Law 8 (2001), 277 ff