Dead man walking? Current European interest in the ordoliberal tradition

Date01 May 2018
Published date01 May 2018
Dead man walking? Current European interest in
the ordoliberal tradition
Josef Hien* |Christian Joerges*
During the years of the financial crisis, ordoliberalism became the target of a Europeanwide 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. AngloAmerican 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.
Ordoliberalism is casting its shadow across Europe. Known to just a handful of dyedinthewool experts out-
side the Germanspeaking 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
and academic
Josef Hien is a PostDoctoral Fellow at the University of Milan. Christian Joerges is Professor of Law and Society at the Hertie
School of Governance in Berlin, and CoDirector 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 Ideaon 1314 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, 459493. 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.
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;
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.
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
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.
Gradually, econo-
mists close to the ordoliberal tradition have largely aligned their positions with those of AngloSaxon 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 publicchoice
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.
S. Cesarotto and A. Stirati, Germany and the European and Global Crises, (2010) 39 Journal of Political Economy,5686; V.
Berghahn and B. Young, Reflections on Werner Bonefeld's Freedom and the Strong State: On German Ordoliberalismand the Con-
tinuing Importance of the Ideas of Ordoliberalism to Understand Germany's (Contested) Role in Resolving the Eurozone Crisis, (2013)
18 New Political Economy, 768778; M. Blyth, Austerity: The History of a Dangerous Idea (Oxford University Press, 2013), 141; S.
Bulmer and W.E. Paterson, Germany as the EU's Reluctant Hegemon? Of Economic Strength and Political Constraints, (2013) 20
Journal of European Public Policy, 13871405; P. Dardot and C. Laval, The New Way of the World: On Neoliberal Society (Verso,
2013); Gerhard Schnyder and Mathias M. Siems, The OrdoliberalVariety of Neoliberalism, in Suzanne J. Konzelmann and Marc
FovargueDavies (eds.), Banking Systems in the Crisis: The Faces of Liberal Capitalism (Routledge, 2013), 250268; S. Bulmer, Germany
and the Eurozone Crisis: Between Hegemony and Domestic Politics, (2014) 37 West European Politics, 12441263; T. Harjunienu
and M. Ojala, Mediating the German Ideology? Ordoliberalism and its Alternatives in the Press Coverage of the Eurozone Crisis,
(2014) 24 Journal of Contemporary European Studies, 414430; F. Denord, R. Knaebel and P. Rimbert, L'ordolibéralisme allemand,
cage de fer pour le Vieux Continent,Le Monde diplomatique, August 2015; R. Hillebrand, Germany and its Eurozone Crisis Policy:
The Impact of the Country's Ordoliberal Heritage, (2015) 33 German Politics & Society,624; A. Lechevalier, Eucken under the Pil-
low: The Ordoliberal Imprint on Social Europe, in A. Lechevalier and J. Wielgohs (eds.), Social Europe: A Dead End: What the Eurozone
Crisis is Doing to Europe's Social Dimension (DJØF Publishing, 2015); P. Nedergaard and H. Snaith, “‘As I Drifted on a River I Could
Not Control: The Unintended Ordoliberal Consequences of the Eurozone Crisis, (2015) 53 Journal of Common Market Studies,
10941109; D. Schäfer, A Banking Union of Ideas? The Impact of Ordoliberalism and the Vicious Circle on the EU Banking Union,
(2016) 54 Journal of Common Market Studies, 961980; J. Oksala, Ordoliberalism as Governmentality, in T. Biebricher and F.S.
Vogelmann (eds.), The Birth of Austerity: German Ordoliberalism and Contemporary Neoliberalism (Rowman & Littlefield, 2017).
S. Dullien and U. Guérot, The Long Shadow of Ordoliberalism: Germany's Approach to the Euro Crisis, (2012) European Council on
Foreign Relations Policy Brief; T. Biebricher, Europe and the Political Philosophy of Neoliberalism, (2013) 12 Contemporary Political
Theory, 338375; idem,Neoliberalism and Law: The Case of the Constitutional BalancedBudget Amendment, (2016) 17 German
Law Journal, 835856.
Important signals were given in H.D. Assmann, Ch. Kirchner and E. Schanze, Ökonomische Analyse des Rechts (Athenäum, 1972).

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