The Path Back to the Law

We more than ever need a theory of law which allows us to imagine and, hopefully, to realise the conditions for social progress. This means, at a minimum, a theory which makes it possible to see how law can help address chronic problems of capitalism, including inequality and environmental degradation, which are now at the point of creating existential risks for democracy and, indeed, humanity.

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The Myth of a Neoliberal European Private Law

Most of the contributions to the excellent collection of essays central to this symposium, refer to neoliberalism, in some cases quite frequently. None of them defines the concept, nor does any of them defend neoliberalism. The term is used mostly in a (very) critical sense, sometimes even dismissively. This book is far from unique in this respect. Indeed, the term neoliberalism is almost never used by politicians or scholars in order to vindicate a political ideal. Instead, during the past decade it has become a standard feature of left-wing political discourse, not only in academia and political activism, but also in mainstream left-wing politics. It is a term used by us to refer to them and their abominable politics.

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Au revoir to Neoliberalism?

The oscillation between a social or a neoliberal paradigm in law as it appears prominently in this volume brings me back to my dissertation years when, between Trento (Italy) and Cambridge (U.S.), I was trying to map the role of la doctrine in the political economy of EU consumer law from the mid-1980s to the late 2000s. My puzzlement was always: where were European and private law scholars while these struggles were taking place in Brussels, Luxembourg and Barcelona?

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The Choice of Paradigms in Political Economy: A Primer for Lawyers

What comes after neoliberalism? And why does this matter to lawyers? The backdrop for these questions is Duncan Kennedy’s portrayal of three paradigms of legal thinking, which successively gained influence across the globe. The first was classical legal thought, which rose to prominence in the second half of the 19th century and matched ideas of economic liberalism and laissez-faire. The second was socially oriented legal thought, which developed from the beginning of the 20th century and conceived of law as a regulatory instrument to advance social reforms. The third paradigm, which emerged in the second half of the 20th century, is referred to as neoformalism and could be termed neoliberalism as well, reflecting the related turn in economic thinking, law and policy-making.

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The Contingency of Governance in the EU

Administrative lawyers are of course aware that the techniques they study and use have existed in different historical periods and have been deployed in different political regimes. But these comparative referents tend to disappear too quickly when it comes to deriving from the governance virtues of the EU, practiced by its institutions and agencies, and the law that may incorporate them, the ability to transform the constitutional characteristics of a political system.

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Integrative Liberalism: A New Paradigm for the Law of Political Economy?

The new volume on the Law of Political Economy (LPE) devises a highly fruitful analytical approach for anyone interested in a better understanding of Europe’s current economic and political transformation, and in particular, the role of law in it. LPE has an adequate sensorium if one assumes (1) that society is not static but evolving and that theoretical approaches based on ideas of “equilibrium” (or, in the field of law, on “systemic coherence”) are therefore unable to understand social evolution; (2) that social evolution is not merely determined by individual economic interests or by the evolution of capitalism as a whole; (3) that legal structures are among the factors influencing that evolution; and (4) that law, or, to be more precise, public law and legislation (as the contribution by Emilios Christodoulidis insists), might even hold one of the keys to social integration.

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Political Economy in the European Constitutional Imaginary – Moving beyond Fiesole

The volume seeks to re-connect law and political economy, both understood in very broad terms. My contribution provides an additional perspective on this theme, and discusses the place of political economy (or rather its conspicuous absence) in the constitutional imaginary of Europe, which has dominated much of the last three decades. It originated, in the words of Antoine Vauchez, ‘in the hills of Fiesole between Badia Fiesolana and the Villa Schifanoia’ (now of course Villa Salviati). Joseph Weiler’s The Transformation of Europe is the foundational piece of this imaginary. I have recently analysed Transformation and discussed it at the place of its birth. This contribution builds on that analysis

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