Legacies and the here and now

Date01 January 2019
Published date01 January 2019
Legacies and the here and now
Agustín Menéndez steered the European Law Journal as editorinchief when EU law became associated with crises,
perhaps more than ever before. Out of a shared sense that the crises this time were of a different order, in particular
because of the challenges they posed to the role of law,
Agustín used these pages to denounce the risks, divisions
and inequalities that crisislaw has built into EU law, to draw attention to the way it is shaping social, political and
economic relationships between the EU Member States, between the EU and its citizens. Perhaps precisely when
the dust started to settle, when experts and savants claimed that the worst of the crises was already behind us, time
was ripe to open new paths of EU legal scholarship, either building on the foundations of EU law or starting afresh
from resources that have always been there but now with the perspective of what the past decade has meant in
terms of transformation and challenges to EU law. The path is for each one to choose. Agustín's choice was to call
for a more serious engagement with democratic constitutional theory as shaped by the social and democratic
There are sound scientific reasons to back up this choice. Irrespective of its evolution in the past
decades, the social and democratic Rechtsstaat remains a strong constitutional tradition ingrained in many of the
Member States' constitutions (whether only in words is another matter). These texts and tradition, arguably, enshrine
still the aspirations of economic and social welfare, freedom and justice that inform law's ordering role, precisely
those that the past decade has acutely challenged. The social and democratic Rechtsstaat marked also the constitu-
tional cradle in which the EU emerged, with the promise of collective economic and social progressand of the con-
stant improvement of the living and working conditionsthat the preamble of the Treaty of Rome placed immediately
after the goal of establishing an ever closer union. Perhaps not wholly fortuitously in this choice was the experience
of the Spanish jurist formed in the wake of a constitutional transition where similar promises were built upon a social
and democratic State, subject to the rule of law, which advocates freedom, justice, equality and political pluralism as
the highest values of its legal system
a manifestation, if this connection holds, of the potential plurality and
richness of European legal studies. Be that as it may, a more serious engagement with the constitutional theory of
the social and democratic Rechtsstaat, if it is to bear fruit for the EU, is indissociable from a deep inquiry into the
historical and economic context of European law.
It is the context of EU law that requires a reconstruction of
how EU law is eventually changing, how it is operating as a mechanism of social ordering, how it may have
contributed to the contexts to which it needs to react now. Equipped with a theory and with the contextual analysis
of law, Agustín firmed up the ground of the best European Law Journal tradition that he often invoked in his editorials.
Agustín José Menéndez, Editorial: A European Union in Constitutional Mutation?(2014) 21 European Law Journal, 127141, 128 (a
sense not without precedent, see Mauro Cappelletti, Monica Seccombe and Joseph Weiler, IntegrationThrough Law: Europe and the
American Federal Experience. A General Introduction, in Cappelletti, Seccombe and Weiler (eds), Integration Through Law: A Political,
Legal and Economic Overview (De Gruyter, 1985), pp. 368, at p. 10, stressing that it does seem as if recent events and challenges
facing the Community in the 1980s, and perhaps beyond, are of a different and larger order of magnitude which call for fresh
Menéndez, ibid., 139.
Article 1(1) of the Spanish Constitution of 1978.
Menéndez, above, n. 1.
DOI: 10.1111/eulj.12306
2© 2019 John Wiley & Sons Ltd. Eur Law J. 2019;25:25.wileyonlinelibrary.com/journal/eulj

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