Armin von Bogdandy discovered the concept of society in Article 2 of the EU Treaty, theorised it as European society and brought it to the forefront of European legal scholarship and practice.

The Member States ratified the term deliberately, as a political choice, in the Treaty of Lisbon, he argues. The term has the potential to overcome Europeans’ own lack of understanding of who they are, and to transform the heterogeneous European experiences into a familiar notion. European integration does not take place between antagonistic Member States but within a society and its institutions. At the same time, it overcomes the excesses of a democracy centred on the will of the people (‘will-of-the-people’ approach) in favour of a constitutionalism based on principles. Even though his concept of society is directed against the people as the subject of collective self-determination, this does not mean that society replaces that subject right away. Society is expressly not that, just as peoples and national political spaces are to continue to exist. Society as totality, for that is nothing less than what is meant, consists of Members States and EU organs, citizens and those living permanently in the EU, corporate entities and intermediaries. Nevertheless, society is said to have the potential ‘to shape’ the established forms of membership in a political community. No doubt, those exclusionary institutions in the medium term shall be transcended by the new status of ‘society’.

It is very refreshing that von Bogdandy makes no secret of his creative aspirations as a European legal scholar and intellectual. As a social structure, he suggests, European society is the place where law and lawyers can bring about social change. The concept, the idea developed by Armin von Bogdandy and his circle around the Max Planck Institute in Heidelberg, is intended to change reality. It is about Heidelberg’s Future Union.

Legal Creativity as Political Agency

The aim is to provide the EU institutions, and above all the European Court of Justice, with a method of interpretation that allows for the evolution of EU law in the interests of advancing integration and of eventually saving Europe. The context for this approach is the conviction that in the EU-27 – foreseeable to be the EU-30+, starting soon with Ukraine and Moldova – with increasingly heterogeneous Member States, formal treaty amendments will no longer be possible. And even if they were to succeed, the compromise would be deeply ingrained in primary law. What is meant to be necessary will likely be missing.

Lawyers step in and become co-creators of Union law through interpretation. They are legitimised by what von Bogdandy previously called the evaluative overall assessment (‘Einschätzungsverbund’, see here). This is not an autonomous act of cognition by a single institution such as the European Council. Rather, the interpretation is based on a process of collective interpretation and evaluation by the relative majority in Member States and EU institutions, academia, and the public. In that process Georg Simmel’s conflict theory plays a role; the German sociologist regards conflicts as a necessary and integral part of society from which fruitful social dynamics are nourished.

The guiding motifs are the Union’s values, the – mythical – twelve principles of Article 2 of the EU Treaty. These values shall be common to members of European society and shape Europeanness.

The Court as a Value-Constitutional Actor

The proposition of a European society stands or falls with the assumption that the Treaty of Lisbon has established a new framework. However, there are good reasons, particularly based on the history of Article 2 TEU and its structure, to take the exact opposite view. The article is deliberately divided into two sentences, and the characteristics of the second sentence are not values. Article 3(1) TEU, which defines the aim of the Union, clearly identifies the peoples of the Member States as the addressees of the common good. The principle of conferral (Art. 4 TEU) as well as its implementation rules (Art. 5 TEU) are missing from the core of Heidelberg’s envisaged Constitution.

Armin von Bogdandy’s thesis is somehow axiomatic but can claim – meanwhile – substantial ground in EU practice. In 2022, the Court adopted the concept of European society in its RT France case. A year ago, the Court affirmed this stance (T-307/22 – A2B). Members of the ECJ and further EU organs have responded positively to the idea in their opinions and public statements – for about three, four years or so, no one involved in European law has been able to escape Heidelberg’s European Society.

Now even the European Court of Justice, indeed its full bench, comprising all its judges, has taken up this idea. In its long-awaited judgement in the LGBTQI-case against Hungary (Case C-769/22), the Court in April 2026 expressly invokes the ‘European society’. It did not, however, adopt the opinion of its Advocate General who had argued that Article 2 of the Treaty on European Union embodies the ideal of a “good society”. Nevertheless, the Court of Justice accepts the Commission’s pitch: it applies Article 2 TEU directly, even though this step would no longer have been necessary in order to reach the correct conclusion in those infringement proceedings, namely that the Hungarian laws were contrary to EU law. Hence, we can assume that the Court of Justice deliberately referred to the social group protected by EU law – which Hungarian law has deliberately excluded and marginalised – as an integral part of “Hungarian and European society” (para. 495).

The concept of society does indeed have potential for legal creativity, even speculation. From the outset, European legal scholarship has been familiar with normative drafts – von Bogdandy himself mentions the epochal but now exhausted project of ‘integration through law’. Of course, it is possible and legitimate to take up the interpretative potential of Union law and present an overall draft. In the European space, this would encourage and challenge others to respond and, when sufficiently incited, to present a counter-draft. As far as I can see, such an intellectual answer is still pending; it should, it must be conceived and formulated.

Critical Questions for a Constructivist Project

Until a theoretically inspired counter-draft is submitted, three critical questions must do the work:

First, with the European Society, Armin von Bogdandy is creating a new point of reference for ‘Europeans’, especially for lawyers, to continue the political unification project through the current crises and beyond. This creative and expansionary action is justified without or even against the will of the old subjects of legitimacy. Society and its ‘network of evaluative overall assessment’ want it that way – this is an avant-garde logic of action, with the protagonists, European lawyers, anticipating the future development of society. We could also say that the actors presume to have knowledge that they do not possess, because they declare their personal preferences to be those of the majority.

Although we know that such constructivism quite likely has unintended consequences, there is no space for irritation. Such a concept could be called not only elitist, which it undoubtedly is, but also anti-democratic.

Second, the central importance of values (Article 2 TEU) is confronted with the problem of their considerable abstractness and substantive ambiguity: What is freedom? How do we understand equality? What form does democracy take? Concretisation is necessary – we have been observing this process since 2018, when the Court of Justice outlined the value of the rule of law. But if (Union) law is no longer to stabilise politics alone but also to shape reality, then it needs special legitimacy. EU law that has been conceived by academics and established by courts, however, cannot rely on tried and tested procedures of ‘political decision-making’. It must justify itself on a case-by-case basis and hope for acceptance, which the Court seems determined to bring about by mobilising its entire bench of 27 judges acting unanimously.

This turns jurisprudence into a political act – and, it is to be feared, sooner or later it will also be perceived as such: as politics. This ‘doctrinal constructivism’ attributed to the ECJ – for me – seems to have a fair amount of ‘decisionist ethos’.

We can already see this happening in the EU today: criticism of the European Court of Justice has grown, and the Commission is making concessions to the new Polish government on matters of the rule of law that call into question the equality of Member States. If the Court of Justice and the EU institutions continue to face such criticism in the long term, might they lose their legitimacy in some sections of European society?

Third, with the European Society, a new legal term is being tailored. The term also draws a firm line between itself and established concepts such as ‘citizenry’, ‘nation’ or ‘people’. At the same time, however, von Bogdandy does not see the new term as naming a new subject of legitimacy. He proposes a new analytical framework, as he has done previously with the European Republic and the European legal space. But what happens to the other terms? They are not abandoned; they continue to exist in the applicable treaties and in the minds of politicians, scholars, and citizens.

He would probably answer that society will initially exist alongside the established terms, reshaping and gradually replacing them. However, we must recognise that the EU is not an island, it does not stand alone. The EU is a continental political space subject to international law. It also operates within the currents of Western theories of government that have developed over centuries. This cannot be resolved through rebranding and conceptualisation. In the end, we will be confronted with a European federation that will be endowed with all the insignia of state power, from which Armin von Bogdandy so diligently distances himself, constantly citing Carl Schmitt as a negative template.

Manifesto for a Progressive European Legal Scholarship

Armin von Bogdandy has presented a manifesto for a renewed progressive European legal scholarship. The manifesto appears at a time when European integration is questioned and under political pressure, when European legal scholarship is described as “bringing EU law back down to earth“. In this respect, he is Hegel’s disciple – a thesis provokes an antithesis. He is pursuing a noble cause. He wants to solve persistent integration problems, increase political dynamics and mitigate institutional threats to the ‘European way of life’. In line with his philosophical mentor, he is concerned with progressive liberalisation.

Women and men in organised Europe shall be freed from institutions such as citizenship, the nation and, of course, the people. They are to be downgraded, if not entirely dismantled, because of their exclusionary nature. A kind of new republican status is to take their place, which – being a constructed and untested concept – in turn envisages differentiations, or to be blunter: exclusions, between organised Europe and the outside world.

Moreover, this ‘scholactivism’ of good intentions, this ‘creative lawyering’, could have the exact opposite effect: institutions of democracy are becoming undifferentiated. The judiciary and the executive are pursuing an agenda based on highly abstract values that can no longer be controlled or even reversed by democratic practices such as elections. A new opaque majority of unelected kings and queens is becoming the reference point for political action. Trust in agreements is dwindling. Mistrust in the boundless logic of appointed bureaucrats and independent judges is growing. Law is becoming disconnected from social reality. Certainly, the fact that conflicts have been articulated in terms of European values underlines their social relevance. The Court’s last word, though, will not pacify severe value-based controversies by mere reference to primacy. The European Union could break apart as a result.

Organised Europe and its laws have already experienced revolutions – especially in the 1960s. The constitutional history of the EU teaches us that many things are possible. We should, therefore, take the idea of a European Society seriously. However, it will not succeed in the form of the present transformative manifesto. The constructivist blueprint for a European Society is not radical enough for that.