Beyond the Economic Constitution: Europe’s Dual Crisis of Legally Constituted Public Power

The ongoing crisis of Europe, so the core argument runs, is, in its core, a crisis of legallyconstituted public power. Although this form of power became codified in the wake of the American and French Revolutions it was, in most (West) European settings, only feebly realised before the mid-twentieth century. In particular, 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 breakdown of the distinction between the public and private realms of society. The (trans-) national re-constitution of Western Europe in the years immediately after WWII, which the European integration process was an integrated part of, successfully remedied this development. However, over the last decades, Europe, together with the rest of the world, has experienced a “turn to governance”. This turn, as is apparent from developments in a string of EU Member States, also implies an erosion of the distinction between the public and private realms, which increasingly challenges the capacity of law to serve as the central framework for the structuration of social exchanges and the integration of society at large. Although part of a general development, the evolution of the EU and, in particular, its crisis response, as it unfolded over the last decade, should be seen in this context. This is particular the case as the new post-crisis legal and institutional architecture of the EU implies the emergence of a “dual Union” partly based on formality and partly on informality.