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

• Date: 01 September 2017
• Published date: 01 September 2017
• DOI: http://doi.org/10.1111/eulj.12230

ORIGINAL MANUSCRIPT

European crises of legally‐constituted public

power: From the ‘law of corporatism’to the ‘law of

governance’

Poul F. Kjaer*

Abstract

The ‘turn to corporatism’in 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 re‐constitution

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 post‐crisis legal and institutional architecture of the EU as it implies the

emergence of a ‘dual Union’partly based upon formality and partly upon informality and an increased suspension

of open‐ended democratic decision‐making.

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 constitution’has

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/0000‐0002‐8027‐3601; Email: pfkj.

dbp@cbs.dk. The paper is developed with support from the European Research Council within the project: ‘Institutional

Transformation in European Political Economy—A Socio‐legal Approach (ITEPE‐312331—www‐itepe.eu)’. Earlier versions

were presented at the conference ‘Beyond the Crisis?—European Transformations’, Europa‐University Flensburg/ARENA,

University of Oslo, Flensburg 19–21 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;23:417–430. wileyonlinelibrary.com/journal/eulj 417