Dead man walking? Current European interest in the ordoliberal tradition

• DOI: http://doi.org/10.1111/eulj.12277
• Author: Josef Hien,Christian Joerges
• Date: 01 May 2018
• Published date: 01 May 2018

ORIGINAL ARTICLE

Dead man walking? Current European interest in

the ordoliberal tradition

Josef Hien* |Christian Joerges*

Abstract

During the years of the financial crisis, ordoliberalism became the target of a European‐wide critical

campaign. This school of thought is widely perceived as the ideational source of Germany's crisis

politics, which has even led to an “ordoliberalisation of Europe”. This essay questions the validity

of such assessments. It focuses on two aspects that are widely neglected in current debates. One

is the importance of law in the ordoliberal vision of the ordering of economy and society. The sec-

ond is its cultural and religious background, in particular in German Protestantism. The influence of

the ordoliberal school on European law, so the essay argues, is overrated in all stages of the integra-

tion project. Anglo‐American neoliberalism rather than German ordoliberalism has been in the idea-

tional driver's seat since the 1980s. In the responses to the financial crisis, the ordoliberal

commitment to the rule of law gave way to discretionary emergency measures. While the founda-

tional synthesis of economic and legal concepts became indefensible, the cultural underpinnings

of the ordoliberal tradition survived and developed a life of their own, in particular in German polit-

ical discourses.

1|INTRODUCTION

Ordoliberalism is casting its shadow across Europe. Known to just a handful of dyed‐in‐the‐wool experts out-

side the German‐speaking world prior to the euro crisis, this theoretical tradition of social philosophy has made

quite a name for itself over the past seven years. Weighty contributions in the press

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and academic

*

Josef Hien is a Post‐Doctoral Fellow at the University of Milan. Christian Joerges is Professor of Law and Society at the Hertie

School of Governance in Berlin, and Co‐Director of the Centre of European Law and Politics at the University of Bremen. We are

indebted to the participants of the conference on “Ordoliberalism. An Irritating German Idea”on 13–14 May 2016 at the Hertie

School of Goverance and their contributions to the ensuing publication Ordoliberalism, Law and the Rule of Economics (Hart Publishing,

2017). We would also like to thank the editor of European Law Journal and the anonymous reviewers for their many constructive sug-

gestions. We owe special thanks to Sandra H. Lustig, Hamburg, who translated the original German version: “Das aktuelle

europäische Interesse an der ordoliberalen Tradition”(2017) 46 Leviathan. Berliner Zeitschrift für Sozialwissenschaft, 459–493. Josef

Hiens' contribution has been written within the Framework of the REScEU project, a Europe an Research Council Project hosted at

the University of Milan (PI Maurizio Ferrera), Grant No. 340534.

1

The Guardian,“Let us Introduce you to ‘Ordoliberalism’”, 2 March 2012; The Financial Times,“The Wacky Economics of Germany's

Parallel Universe”, 16 November 2014; The Economist,“German Ordoliberalism has had a Big Influence on Policymaking during the

Euro Crisis”, 9 May 2015.

DOI: 10.1111/eulj.12277

142 © 2018 John Wiley & Sons Ltd. Eur Law J. 2018;24:142–162.wileyonlinelibrary.com/journal/eulj

publications

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view ordoliberalism as an economic policy concept that is said to have guided the German govern-

ment during the debt crisis. The influence of this policy, some claim, had brought about an “ordoliberalisation of

Europe”. Contributions echoing this criticism are relatively rare in Germany.

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This finding is the starting point of

our deliberations: criticism of ordoliberalism is above all a criticism of German crisis policy.

Recent interest in ordoliberalism has been focused closely on its ideas regarding economic policy. Yet people

forget the extent to which the founding fathers insisted on interdisciplinarity and perceived the economic order

as a legal order. Besides the fact that ordoliberalism was originally anchored in legal concepts, we will go into a

second foundational element which is also left largely unconsidered in the current debate, namely the fact

that the values underlying ordoliberal theory and constituting its sociological core are heavily influenced by

Protestantism.

We believe the direct impact ordoliberalism has in shaping German's policy towards Europe is overestimated.

The influence of this school on forming the project of integration was minor, even in the formative 1950s and

1960s. Its theoretical power and practical relevance have been declining since the 1960s. Its backing in the legal

sciences became weaker and weaker given the impact of American “economic analysis of law”.

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Gradually, econo-

mists close to the ordoliberal tradition have largely aligned their positions with those of Anglo‐Saxon neoclassical

economics, and ordoliberalism has fallen victim to overlying American influences on German economics. It is telling

that during the euro crisis, there were no genuinely ordoliberal contributions by economists or legal scholars that

supported Germany's crisis policy. Opinion pieces by German economists institutionally linked to ordoliberalism

(through the Walter Eucken Institut, the Stiftung Marktwirtschaft, and the Kronberger Kreis) take up public‐choice

theories and the new institutional economics in which the original interdependencies between law, economics, and

the constitution have faded away.

Nonetheless, we find ordoliberal traditions having indirect influence. This influence is based on its sociological

core: the underlying Protestant cultural values that originally constituted the foundation for ordoliberalism formed

and still form German politicians' discourse on the crisis. Ordoliberalism thus continues to be influential in German

politics thanks to its cultural foundations; politicians use ordoliberal references symbolically to indicate certain polit-

ical mindsets and orientations.

2

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Important signals were given in H.‐D. Assmann, Ch. Kirchner and E. Schanze, Ökonomische Analyse des Rechts (Athenäum, 1972).

HIEN AND JOERGES 143