European crises of legally‐constituted public power: From the ‘law of corporatism’ to the ‘law of governance’

Date01 September 2017
Published date01 September 2017
AuthorPoul F. Kjaer
DOIhttp://doi.org/10.1111/eulj.12230
ORIGINAL MANUSCRIPT
European crises of legallyconstituted public
power: From the law of corporatismto the law of
governance
Poul F. Kjaer*
Abstract
The turn to corporatismin the interwar period implied an erosion of the fragile institutionalisation of legally
constituted public power due to its suspension of the legal infrastructure of society and the concomitant break-
down of the distinction between the public and private realms of society. The dual (trans)national reconstitution
of Western Europe in the years immediately after the Second World War, which the European integration process
was an integrated part of, successfully remedied this development. However, over the last decades, Europe has
experienced a turn to governance,which also implies an erosion of the distinction between the public and private
realms, and increasingly challenges the normative integrity and functional capacity of law. This development has
been further reinforced by the new postcrisis legal and institutional architecture of the EU as it implies the
emergence of a dual Unionpartly based upon formality and partly upon informality and an increased suspension
of openended democratic decisionmaking.
1|INTRODUCTION
As a response to the many and overlapping crises that have hit the European Union since 2007, the legal architecture
of both the EU and its Member States has undergone profound changes. The EU's macroeconomic constitutionhas
been fundamentally overhauled,
1
leading to deep changes within the legal orders of the Member States as well. In
some Member States, this process has also implied constitutional amendments.
2
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This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and repro-
duction in any medium, provided the original work is properly cited.
© 2017 The Authors. European Law Journal Published by John Wiley & Sons Ltd
*
Professor and Principal Investigator at Copenhagen Business School. ORCID: http://orcid.org/0000000280273601; Email: pfkj.
dbp@cbs.dk. The paper is developed with support from the European Research Council within the project: Institutional
Transformation in European Political EconomyA Sociolegal Approach (ITEPE312331wwwitepe.eu). Earlier versions
were presented at the conference Beyond the Crisis?European Transformations, EuropaUniversity Flensburg/ARENA,
University of Oslo, Flensburg 1921 May 2016, and at the Department of Law, European University Institute Florence, 29
September 2016.
1
See, in particular, K. Tuori and K. Tuori, The Eurozone Crisis: A Constitutional Analysis (Cambridge University Press, 2014).
2
For an overview, see http://eurocrisislaw.eui.eu.
DOI: 10.1111/eulj.12230
Eur Law J. 2017;23:417430. wileyonlinelibrary.com/journal/eulj 417

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