Legacies and the here and now

• Date: 01 January 2019
• Author: Joana Mendes,Harm Schepel
• DOI: http://doi.org/10.1111/eulj.12306
• Published date: 01 January 2019

EDITORIAL

Legacies and the here and now

Agustín Menéndez steered the European Law Journal as editor‐in‐chief 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,

1

Agustín used these pages to denounce the risks, divisions

and inequalities that crisis‐law 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

Rechtsstaat.

2

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 progress”and of the “con-

stant improvement of the living and working conditions”that 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”

3

—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.

4

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.

1

Agustín José Menéndez, ‘Editorial: A European Union in Constitutional Mutation?’(2014) 21 European Law Journal, 127–141, 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. 3–68, 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

assessments”).

2

Menéndez, ibid., 139.

3

Article 1(1) of the Spanish Constitution of 1978.

4

Menéndez, above, n. 1.

DOI: 10.1111/eulj.12306

2© 2019 John Wiley & Sons Ltd. Eur Law J. 2019;25:2–5.wileyonlinelibrary.com/journal/eulj