Poul F. Kjaer

What is to be learned from the chaotic downfall of the Weimar Republic and the erosion of European liberal statehood in the interwar period vis-a-vis the ongoing Europeancrisis? This book analyses and explains the recurrent emergence of crises in European societies. It asks how previous crises can inform our understanding of the present crisis. The particular perspective advanced is that these crises not only are economic and social crises, but must also be understood as crises of public power, order and authority. In other words, it argues that substantial challenges to the functional and normative setup of democracy and the rule of law were central to the emergence and the unfolding of these crises.The book draws on and adds to the rich ’crises literature’ developed within the critical theory tradition to outline a conceptual framework for understanding what societal crises are. The central idea is that societal crises represent a discrepancy between the unfolding of social processes and the institutional frameworks that have been established to normatively stabilize such processes. The crises at issue emerged in periods characterized by strong social, economic and technological transformations as well as situations of political upheaval. As such, the crises represented moments where the existing functional and normative grid of society, as embodied in notions of public order and authority, were severely challenged and in many instances undermined. Seen in this perspective, the book reconstructs how crises unfolded, how they were experienced, and what kind of responses the specific crises in question provoked.

List of Content

Introduction: European Crises of Public Power: From Weimar until Today, Poul F. Kjaer & Niklas Olsen / PART I: Semantics, Notions and Narratives of Societal Crisis / 1. What Time Frame Makes Sense for Thinking about Crises?, David Runciman / 2. The Stakes of Crises, Janet Roitman / PART II: Weimar and the Interwar Period: Ideologies of Anti-Modernism and Liberalism / 3.The Crisis of Modernity – Modernity as Crisis: Towards a Typology of Crisis Discourses in Interwar East Central Europe and Beyond, Balázs Trencsényi / 4. European Legitimacy Crises – Weimar and Today: Rational and Theocratic Authority in the Schmitt-Strauss Exchange, John P. McCormick / 5.Crisis and the Consumer: Re-constructions of Liberalism in Twentieth Century Political Thought, Niklas Olsen / PART III: The Causes of Crises: From Corporatism to Governance / 6. The Constitutionalisation of Labour Law and the Crisis of National Democracy, Chris Thornhill / 7. Conflict and the Crisis in Labour Law: From Weimar to Austerity, Ruth Dukes / 8. From the Crisis of Corporatism to the Crisis of Governance, Poul F. Kjaer / PART IV: The Euro and the Crisis of Law and Democracy / 9. What is Left of the European Economic Constitution II? From Pyrrhic Victory to Cannae Defeat, Christian Joerges / 10. Reflections on Europe’s “Rule of Law Crises”, Jan-Werner Müller / 11. Democracy under Siege: The Decay of Constitutionalisation and the Crisis of Public Law and Public Opinion, Hauke Brunkhorst / PART V: The Consequences of Crises and the Future of Europe / 12. Crises and Extra-Legality: From Above and from Below, William E. Scheuerman / 13. “We could Go down the Road of Lebanon”: Crisis Thinking on the Anti-Muslim Far Right, Mikkel Thorup / 14. Conclusion and Perspectives: The Re-constitution of Europe, Poul F. Kjaer & Niklas Olsen

Review:
Romain Bonnet (2017): European Review of History: Revue européenne d'histoire, DOI: 10.1080/13507486.2017.1317054

"This book develops a sociologically informed theory of constitutionalism in the global realm, addressing both national and transnational forms of constitutional ordering. The book begins with the argument that current approaches to constitutionalism remain tied to a state-based conception of constitutions, and overlooks underlying structural transformations that trigger the emergence of constitutional forms of ordering. Poul F. Kjaer aims to address this shortcoming by offering a sociological and historically informed analysis of the evolution of constitutionalism in the face of globalisation. The analysis contextualises on-going constitutional developments through the use of a long-term historical perspective, which is capable of highlighting the impact of deeper structural transformations unfolding within society.
The book looks at the ways in which national and transnational legal forms have evolved alongside one another. It demonstrates that the formation of global constitutions has not resulted in a corresponding decrease in the power of nation states, but instead, legal and political aspects of both the nation state and the transnational have been reconfigured and intensified in a mutually supportive manner.
In combining insights from a range of fields, this interdisciplinary book will be of great interest to students and scholars of constitutional law, sociology, global governance studies, and legal, social and political theory.

List of Content
1. Introduction: The Metamorphosis of Constitutionalism
Part 1: Structural Transformations
2. The Implosion of the Euro-Centric World
3. The Multiplicity of Normative Orders in World Society
Part 2: Re-configurations of Law and the Political
4. The Law within and in-between Normative Orders
5. The Political within and in-between Normative Orders
Part 3: Constitutional Stabilisation
6. The Breakdown of Constitutional Ordering through Globalisation-induced Crises
7.The Transmutation of Constitutional Ordering
8.Re-calibrating the Constitutional Concept
9. Conclusion

Reviews and Review essays:
- Aldo Mascareño: Revista de Ciencia Política, 36, 2, 587 – 592, 2016.
- Gregory Shaffer: ‘Law, Constitutionalism and World Society: Kjaer, Kratochwil,
and global (dis)order’, International Journal of Constitutional Law, 13, 4, 1063–1077, 2015.
-    Alfons Bora: Zeitschrift für Rechtssoziologie, 35, 1, 152-156, 2015.
- Grahame Thompson: ‘Socializing the Constitution?’, Economy and Society, 44, 3, 480 – 93, 2015.

""This volume presents the first thorough sociologically-informed legal analysis of the financial crisis which unfolded in 2008. It combines a multitude of theoretically informed analyses of the causes, dynamics and reactions to the crisis and contextualises these within the general structural transformations characterising contemporary society. It furthermore explores the constitutional implications of the crisis and suggests concrete changes to the constitutional set-up of contemporary society.

Although the question of individual responsibility is of crucial importance, the central idea animating the volume is that the crisis cannot be reduced to a mere failure of risk perception and management for which individual and collective actors within and outside of financial organisations are responsible. The 2008 crisis should rather be understood as a symptom of far deeper structural transformations. For example contemporary society is characterised by massive accelerations in the speed with which societal processes are reproduced as well as radical expansions in the level of globalisation. These transformations have, however, been asymmetrical in nature insofar as the economic system has outpaced its legal and political counterparts. The future capability of legal and political systems to influence economic reproduction processes is therefore conditioned by equally radical transformations of their respective operational forms and self-understanding. Potentially the 2008 crisis, therefore, has far-reaching constitutional implications.

Individual Contributions
Poul F. Kjaer, Introduction;
Gunther Teubner, Constitutional Moment? The
Logics of ‘Hitting the Bottom’;
Rudolf Stichweh, Towards a General Theory of
Function System Crises;
Karl-Heinz Ladeur, Financial Market Crisis:
A Case of Network Failure?;
Moritz Renner, Death by Complexity: The
Financial Crisis and the Crisis of Law in World
Society;
Urs Stäheli, Political Epidemiology and the
Financial Crisis;
Hauke Brunkhorst, Return of Crisis;
Dirk Baecker, Culture Form of Crisis;
Jean Clam, What is a Crisis?;
Marc Amstutz, Eroding Boundaries: On Financial
Crisis and an Evolutionary Concept of
Regulatory Reform;
Alberto Febbrajo, Failure of Regulatory Institutions:
A Conceptual Framework;
Kolja Möller, Struggles for Law: Global Social
Rights as an Alternative Financial Market
Capitalism
Aldo Mascareño, Ethics of the Financial Crisis;
Chris Thornhill, Future of the State;
Poul F. Kjaer, Law and Order Within and
Beyond National Configurations.


Reviews and review essays:

- Cesare Pinelli, European Constitutional Law Review, 11 (1), 217-225, 2015.

- Andromachi Georgosouli, International Journal of Constitutional Law, 10(4), 2012, 1174-1177.

- Giorgio Tosetti Dardanelli, European Journal of Risk Regulation, 2, 2012, 273-275.

- Emilios Christodoulidis: The Quest for a Constitutional Perspective, Jurisprudence, 4, 2, November 2013 , pp. 322-335."

"This book explains the emergence and functioning of three forms of governance structures within the context of the European integration and constitutionalisation process: comitology, (regulatory) agencies and the Open Method of Co-ordination. The point of departure is the insight that the intergovernmental/supranational distinction, which most theories of European integration and constitutionalisation rely on, has lost its strength. A new paradigm of EU research is therefore needed.

Against this background it is suggested that the distinction between governing and governance provides a more appropriate basis for analysing the phenomenon of integration and constitutionalisation in Europe. The distinction between governing and governance allows for an understanding of the EU as a hybrid consisting of a governing dimension, characterised by legal and organisational hierarchy, and a governance dimension which operates within a network form characterised by legal and organisational heterarchy. The function of governance structures is to ensure the embeddedness of the governing dimension in the wider society. Instead of representing contradictory developments, the two dimensions are therefore mutually constitutive in the sense that more governing implies more governance and vice versa. These theoretical insights are illustrated through two detailed case studies which respectively reconstruct the operational mode of the Open Method of Coordination within EU Research & Development Policy and the regulatory system for the EU chemicals market (REACH).

The book is inter-disciplinary in nature and incorporates insights from law, political science and sociology.

Reviews and review essays:

- Thomas Conzelmann, European Law Journal, volume 19, Issue 1, 143 – 45, 2013.
- Agustin José Menéndez, European Public Law, Vol. 18, Issue 3, pp. 556–563, 2012.
- Sarah Kahn-Nisser and Gianluigi Palombella: ‘Integration and Function: Taming Governance in the EU?, Transnational Legal Theory, Vol. 1, 4, 587 – 595, Dec. 2010.
- Chris Thornhil, Journal of Law and Society, Vol. 37, 4, 687-90, Dec. 2010.
- Edoardo Chiti, The Common Market Law Review, Vol. 48, 1, 265-66, 2011.
- Maartje de Visser, European Law Review, Vol. 36, 3, June, 440 – 442, 2011.
-Mark Fenwick, The European Union Institute in Japan Review, Feb., 1 – 5, Feb. 2012."

"The Report presents insights which illuminates the intertwinements of European regulatory policies and global governance arrangements. By pinning down the exact nature of the interaction between these two levels, the EU’s dilemma becomes obvious: On the one hand, stronger global governance can be a chance, through which the EU can clarify its own raison d’être of increased integration to the wider world. On the other hand, the design of the European project is being challenged by more assertive global structures. This is especially the case in relation to the WTO regime, which is constraining the decisional autonomy of the EU, regarding the appropriateness of its content and its external effects. Thus, the regulation of services in the EU and the WTO are discussed in the first section of this report. Section two focuses on labour standards, which are analysed from different angles in order to clarify the functions of the WTO and the ILO, multinational companies as well as other private actors within this specific field. The final section deals with the legitimacy problematic of transnational governance.

Table of contents:

Introduction
Christian Joerges and Poul F. Kjaer

Section One: Freedom of Services

Chapter 1
The Multiple Understandings of Conflict between Trade in
Services and Labour Protection
Alexia Herwig
Chapter 2
Competing in Markets, not Rules:
The Conflict over the Single Services Market
Susanne K. Schmidt
Chapter 3
Competitiveness and Labour Protection: A Comment
Markus Krajewski
Section Two: Labour Standards
Chapter 4
WTO and ILO: Can Social Responsibility be maintained
in International Trade?
Josef Falke
Chapter 5
Reframing RECON: Perspectives on Transnationalisation and
Post-national Democracy from Labour Law
Claire Methven O’Brien
Chapter 6
Transnational Governance and Human Rights: The Obligations of
Private Actors in the Global Context
Regina Kreide
Section Three: The Legitimacy of Transnational Governance
Chapter 7
Legitimacy through Precaution in European Regulation of GMOs?
From the Standpoint of Governance as Analytical Perspective
Maria Weimer
Chapter 8
The Justice Deficit of the EU and other International Organisations
Jürgen Neyer
Chapter 9
Towards Normative Legitimacy of the World Trade Order
Alexia Herwig and Thorsten Hüller
Chapter 10
From Utopia to Apology – The Return to Inter-state Justice
in Normative IR Scholarship: Comments on Neyer and
Herwig & Hüller
Jens Steffek"

The 'conflicts law approach' reconstructs the potential of primarily, but not exclusively, European law to address the threat to democracy that is posed by the concern that citizens would increasingly be subject to the effects of laws which they themselves had not authored. This structural democratic deficit calls for consideration of 'foreign' demands. It also calls for cooperation and mutual respect between political constituencies. The normative basis for understanding conflicts law as a constitutional form with democratically grounded validity claims stems from the proposition that states must acknowledge or establish a law that provides a forum for foreign demands and manifests deference through transnational rules. The approach sets out to examine three types of conflict constellations—horizontal, vertical and diagonal legal conflicts—and three types of law-mediated responses, layered as the scheme of a 'three-dimensional conflicts law'.

This article asks the question why the social praxis of justification has moved to the centre-stage within the debate on transnational legal ordering. The starting point is the development of a generic concept of legally constituted public power aimed at breaking the frames that classically distinguish the national and the transnational and state and society. On that background, two structural differences between national and transnational public power are focused upon. First is the issue of constructing and delineating boundaries, which in national contexts is addressed through reference to territorial borders. Second is the issue of adapting decision-making to changing societal circumstances, which is addressed in national contexts through democracy. Both of these remedies are unavailable or only partially available at the transnational level. It is in order to respond to these deficiencies, it is argued, that a turn to justification has emerged at the transnational level of world society.

Developing a sociological informed social theory perspective, this article asks the question why social praxis’ of justification has moved to the centre-stage within the debate on transnational ordering. In contrast to perspectives which see the relationship between national and transnational forms or ordering as characterised by a zero-sum game, the coevolutionary and mutually reinforcing relationship between national and transnational forms of ordering is emphasised. It is, moreover, argued that this complementarity can be traced back to the fundamentally different function and position of national and transnational forms of ordering in world society. The widespread attempt to analyse transnational developments on the basis of concepts of law and the political which emerged in national contexts are therefore seen as problematic. Instead context adequate concepts of transnational law and politics are needed. It is on this background, that a discourse on justification has emerged in relation to transnational settings. Transnational justificatory praxis’ can be understood as functional equivalents to democracy in transnational settings in so far as both can be understood as reflexivity increasing instruments. The central difference is, however, that democratic frameworks implies an ex ante form of the political in contrast to the ex post emphasis of justificatory praxis’. In addition, law gains a central role as the framework through which justificatory praxis’ are structured in transnational settings.

In the first half of the twentieth century, and, in particular, in the interwar period, corporatism, in its populist, progressive, reactionary and totalitarian variants, became a central feature of European societies. Many observers have regarded this development as a central driving force of the profound societal crises which characterised this period. In contrast, other observers have mainly interpreted the corporatist surge as both a reaction and a possible solution to societal crises caused by the nature of capitalist re-production. In a similar vein, the emergence and expansion of new types of governance institutions since the 1970s has been understood as both the cause and as a reaction to the protracted series of crises which have characterised Western Europe and the rest of the Western world from the 1970s to the recent financial crisis.
In more general terms, societal crises can be said to be intrinsic to a modern society that is characterised by constant transformations of its basic structure. This is also reflected in the constitutive distinction of modern society, the distinction between the factual unfolding of social processes and contra-factual normative articulations concerning how these processes ought to unfold. Against this background, this chapter examines the close link between societal crises and the evolution of intermediary institutions in their corporatist, neo-corporatist and governance variants in the European context. Intermediary institutions fulfil a dual role in so far as they are simultaneously oriented towards the internal stabilisation of social processes and the establishment of compatibility between the social process in question and the rest of society. This gives them a strategic location in society in so far as they can be understood as central sites of societal integration as also reflected in the particular way in which they seek to combine factuality and normative articulations. But this location also implies that they are sites where tendencies of societal dis-integration tend to emerge and become most visible. This was particular clear in relation to interwar corporatism, but it has also re-emerged as a central issue within contemporary governance. A central reason for the crisis proneness of both interwar corporatism and contemporary governance can be found in their advancement of a fundamental anti-legalist stance which, both in the interwar period and in the present time, paved the way for an erosion of the legal infrastructure of society.

Once again, Europe finds itself in the middle of a crisis. In public discourse, the ongoing crisis has foremost been considered as an economic crisis, or a crisis of a largely technical nature due to failed governance within the Euro-zone. However, the still unfolding refugee crisis and the widespread challenges to the state of law and parliamentary democracy, which have emerged in many European settings in recent years, indicates that the crisis trajectory cannot be understood in purely economic or technocratic terms. Accordingly, this volume takes a different approach to the understanding of the current crisis. First, it re-constructs the commonalities and differences between this and earlier major European crises from the interwar period onwards. Second, it re-conceptualises these European crises as primarily crises of public power and authority. Thirdly, it offers an interdisciplinary framework for analysing and understanding the phenomenon of crisis more generally.

This article examines the relationship between the evolution of statehood and competition in the European context. To begin with, a particular take on the evolution of modern political power in the state form in Europe is developed. Against this background, the article reconstructs how the institutionalization of competition as a specific type of policy tool has been used by emerging modern states to establish their authority vis-à-vis competing claims to public authority in society. The article, furthermore, engages in an examination of (neo-)corporatist and governance-based attempts both to curb and to expand the use of competition as a tool for organizing social processes, and the implications of these attempts for the state of statehood.

The Europe of today is not Weimar. Substantial structural and cultural differences exist between the Europe of the interwar period and today’s Europe. Nonetheless, this book contends that Weimar is not as far away as we might hope, and as we would have thought only a few years ago.

Departing from a systems theoretical perspective, this chapter argues that the starting point for improving the EU's problem solving capacities is to understand its location in world society and the societal functions it is striving to fulfil. The EU is located 'in-between' European nation states and the global world. As such the EU can also be understood as an interface between the member states and the rest of the world. This is also reflected in its hybrid institutional architecture which combines hierarchical governing elements characteristic of states with heterarchcial governance elements. The core element of this hybridity is the way the EU combines territorial and functionally differentiated dimensions of society in so far as the EU, simultaneously, is a territorial delineated unit and a conglomerate of functional regimes. This hybridity implies that the EU, in its present form, is ill-suited to take over core stat functions so far exercised by its Member States. Whereas the evolution of the EU until the outbreak of the financial crisis contributed to a undermining of Member State problem solving capacities, the EU's objective and substantial policies should be re-framed in a manner which supports rather than undermines the exercise of such capacities.

Intermediary institutions are a multi-facetted phenomenon which has taken many different forms in the course of social evolution. This is also being testified by the evolutionary trajectories from corporatism through neo-corporatism to governance in the European settings from the mid-nineteenth century onwards. Against this background, this chapter seeks to outline the key parameters of a theoretical framework suitable for approaching and analysing intermediary institutions. The chapter pins down five central dimensions of intermediary institutions. This is done under the headings: Context, Function, Evolution, Order, and Compatibility.

No weakening, but rather an expansion, of statehood can be observed in the contemporary world. This does not, on the other hand, imply that extensive forms of constitutional ordering do not exist outside the realm of states. Instead, the evolution of world society has been characterized by a protracted dual movement where the expansion and densification of statehood and autonomous forms of transnational ordering gradually emerged in a mutually constitutive fashion. One implication of this is that neither the concept of the state nor the concept of nonstate transnational entities is adequately capable of delineating the object of constitutional analysis. Instead, the concept of normative orders has been introduced as an overarching category capable of identifying the contexts within which constitutional ordering emerges.
Subsequently, a distinction between the internal and external dimensions of the law of normative orders has been introduced, specifying them as respectively oriented towards establishing internal condensation of a given normative order and external compatibility between different normative orders. With this background, a framework for the analysis of constitutional frameworks of normative orders is developed. The central element is a distinction among three dimensions: First, a constitution implies a coupling between a constitutional object, in the form of a hierarchical organization of a given normative order capable of reproducing an autonomous source of authority, and a concordant legal framework. Second, constitutionalization implies a coupling between an internal reconstruction of an external constitutional subject within the constitutional object, and the register of legal rights, establishing a framework for exchanges between the constitutional object and the wider world as represented by the constitutional subject. Third, constitutionalism denotes the institutionalization of a double function, in the form of a principle-based and legally fortified striving toward universal inclusion, providing a sense of direction in time through an articulated form of constitutional consciousness.
The insights developed are briefly illustrated by the case of the global Fairtrade Certification System.

The central ambition of this chapter is to develop dimensions of a theoretical and conceptual framework for the study of intermediary institutions, such as corporatist, neo-corporatist and governance institutions, in the European context. As such, it is designed to create a framework that is capable, not only of delineating intermediary institutions as an independent object of study and of increasing our understanding of their contribution to the integration of society, but also – more specifically – of illuminating the pivotal role of law in their evolution. This ambition is derived from the insight that intermediary institutions are the hinges of modern society in so far as they serve as central sites for the stabilisation of relations between multiple social spheres, most notably between the economic and the non-economic spheres, of society. Intermediary institutions might therefore be considered to be particular dense forms of the structures characterizing society as such just as changes in the setup of intermediary institutions might reflect particular clear illustrations of the transformations which society in its entirety has undergone.  Developing a new understanding of the role of intermediary institutions will therefore provide a direct contribution to our understanding of modern European states just as it implicitly contains the promise of increasing our understanding of society as such.

Within the context of evolutionary governance theory this contribution develops a particularly co-evolutionary view of governance by understanding governance frameworks as forms of transfer. World society consists of multiple types of normative orders. It is within this structural setup that a governance phenomenon has emerged as the form through which expectations between different normative orders are stabilized. In addition, governance institutions serve as the central channels through which transfers between such orders are made possible. They structure the transposition of condensed social components such as economic products and capital, political decisions, legal judgments, scientific knowledge, and religious acts of salvation from one order to another, thereby allowing coevolution to unfold. In this context, law and legal instruments gain a central role since legal formalization is the central element that enables successful transfers to take place.

Die Europäische Union (EU) operiert ‚zwischen‘ ihren Mitgliedstaaten und globalen transnationalen Strukturen. Ihre Rechtsordnung ist weder durch eine nationalstaatliche Hierarchie noch durch eine radikale Heterarchie, einem wesentlichen Merkmal globaler Rechtsstrukturen, gekennzeichnet. Vielmehr ist die EU ein Hybrid, der Hierarchie und Heterarchie in spezieller Weise verbindet. Dieser Hybridcharakter wird in der Organisationsform der EU deutlich. Die EU ist ein organisatorisches Konglomerat, das aus einer ganzen Reihe von Institutionen besteht. Trotz dieser Vielfalt kann sie in der Gesamtschau aber dennoch als auf einer zweidimensionalen Organisationsstruktur ruhend verstanden werden. Auf der einen Seite ist die EU durch eine hierarchische Regierungsdimension gekennzeichnet, die aus dem Dreiecksverhältnis zwischen dem Rat der Europäischen Union (Rat), der Kommission der Europäischen Gemeinschaft (Kommission) und dem Europäischen Parlament (EP) besteht. Auf der anderen Seite weist die EU eine heterarchische Dimension auf, die aus einer Vielzahl von Governancestrukturen besteht. Dazu gehören etwa die offene Methode der Koordinierung, das Komitologiesystem und die Regulierungsagenturen. Die erste Dimension macht den Kern des politischen Systems der EU aus. Die zweite Dimension beinhaltet Formen, mittels derer das politische System der EU seine Einbettung in verschiedene soziale Umwelten absichert. Anders ausgedrückt: Die Governancedimension ist die organisatorische Form, durch die die EU ein sozialer Raum konstruiert. Diese Dimension spiegelt daher die funktional differenzierten Tiefenstrukturen der Gesellschaft als Ganzes wider. Und gleichzeitig zielt sie direkt auf die Überwindung der Unterscheidung zwischen öffentlichen und privaten Bereichen der Gesellschaft ab. Entsprechend kann man argumentieren, dass die Unterscheidung zwischen Regieren und Governance eine Leitdifferenz ist, auf der die EU gründet. Diese Unterscheidung ist mithin ein funktionales Äquivalent der ‚alteuropäischen‘ Unterscheidung von Staat und Gesellschaft, die auf Hegel zurückgeht. Die Frage, wie die konstitutionelle Form der EU am besten beschrieben werden kann, muss daher in zwei andere Fragen überführt werden: Wie gestaltet sich das Verhältnis zwischen die Regierungs- und die Governancedimension konkret, und wie können die Beziehungen zwischen den verschiedenen Governancestrukturen in eine konstitutionelle Form gebracht werden?

pp. 121 – 44 in Pacal Goeke, Roland Lippuner, Johannes Wirths (Hrsg.): Konstruktion und Kontrolle. Zur Raumordnung sozialer Systeme. Springer VS, Wiesbaden, 2015. ISBN 978-3-658-03644-7

In recent decades constitutional conceptuality has provided the central epistemological framework through which the issue of legitimacy of transnational orders has been addressed. Departing from a reconstruction of four central characteristics of transnational orders related to the concepts of organisational hierarchy, norm production, regimes and authority, the ongoing debate on transnational constitutionalism, and how the question of legitimacy beyond the state is addressed within this debate, is pinned out. Finally dimensions of a context adequate concept of the political is developed in order to provide a basis for evaluating the quest for legitimacy in the transnational realm.

Departing from systems theory, Marc Amstutz has developed a refined theory of world law. In the course of developing this theory he has, however, reformulated or changed the status of a number of central system theoretical concepts, including the concepts of (co-)evolution, interpenetration and function. At first glance, these changes appear to be relatively inconsequential but at second glance they amount to a radical reformulation of systems theory because the focus is systematically shifted away from system internal processes and towards inter-systemic processes. Although Amstutz departs from a legal perspective, his theory is in fact projecting a mirror image of the wider society. Amstutz has, in other words, not just developed a theory of world law, but rather a central contribution to a novel inter-systemic theory of society as such.

The EU is a structure which is positioned “in-between” hierarchically organized nation-state governing structures and heterarchically structured global governance structures. Thus, the EU is a hybrid which partly relies on governing and partly on governance. This two-dimensionality is the central reason why the question of the constitutional character of the EU remains fundamentally unresolved. Thus, it is proposed that the EU should aim for the development of a constitutional form aimed at alleviating the tensions inherent in the European construction through a conflict of laws approach. In order to respect the hybridity of the Union, such an approach will however have to be based on a three-dimensional conflict of laws concept insofar as it would have to take account of horizontal conflicts between territorial units, vertical conflicts between the EU and its ember states as well as horizontal conflicts between the functionally differentiated structures of the wider society.

On the backdrop of the 2008 financial crisis this paper introduces an understanding of societal crises as a reduction in the meaning production of social entities, which can either be internally or externally provoked. The emergence of constitutions and, more generally, constitutional structures, can be understood as responses to both forms of crisis. This is the case because they are double-edged structures which are simultaneously oriented towards the maintenance of internal order and stability within a given social entity at the same time as they frame the transfer of the meaning components between the social entities and their environments. Thus, the 2008 financial crisis indicates a failure of constitutional bonding. When observed from an overall structural perspective, the reasons for this failure can be traced back to an increased discrepancy between the structural composition of world society and the constitutional structures in place. The crisis reflects a failure to respond to two simultaneous, inter-related and mutually reinforcing structural transformations. First, there is the increased globalisation, which has led to massive dislocations in the relative centrality of the different national configurations for the reproductive processes of functional systems. Second, there is a structural transformation of the transnational layer of world society through a reduced reliance on the centre/periphery differentiation and an increased reliance on functional differentiation. One of the many consequences of this development is the emergence of new forms of transnational law and politics. A new constitutional architecture which reflects these transformations is needed in order to ensure an adequate constitutional bonding of economic processes, as well as of other social processes.

Usually regarded as a 1970s phenomenon, this article demonstrates that the debate between Jürgen Habermas and Niklas Luhmann continued until Luhmann’s death in 1998, and that the development of the two theorists’ positions during the 1980s and 1990s was characterised by convergence rather than by divergence. In the realm of legal theory, the article suggests, convergence advanced to the extent that Habermas’ discourse theory may be characterised as a normative superstructure to Luhmann’s descriptive theory of society. It is further shown that the debate’s result was an almost complete absorption of Habermas’ theory by Luhmann’s systems theoretical complex – an outcome facilitated by Luhmann’s deliberate translation of central Habermasian concepts into systems theoretical concepts. The article argues that both the debate and Habermas’ conversion were made possible because not only Habermas’ but also Luhmann’s work can be considered a further development of the German idealist tradition. What Luhmann did not acknowledge was that this manoeuvre permitted the achievement of Habermas’ normative objectives; nor did he notice that it could eradicate a central flaw in the system theoretical construction, by allowing the context within which distinctions are drawn to be mapped – an issue of pivotal importance for grasping relationships between different social systems, and coordinating them, via the deployment of legal instruments.

"The question whether constitutions exists or can exist at all beyond the state has been a central theme of academic dispute in the last decades. This contribution departs from the historical insight that extensive forms of ordering possessing constitutional qualities always have existed beneath, beside and above the state. In the last decades the debate on constitutionalism beyond the state has however unfolded in two separate discourses: One which focuses on public international organizations and another which focuses on private structures. The former is mainly driven by political scientists and public lawyers and is characterized by an attempt to rework nation state concepts of the political in order to make them compatible with transnational developments. The latter is, on the other hand, systematically downplaying the political dimension of transnational structures. In order to bridge this gap a number of key dimensions of a specific transnational concept of the political is being fleshed out.
"

States remain a central form of ordering but only one among several. In the transnational space, a wide range of autonomous public- and private-norm producing organizations and regimes operates, which is not, or only partly controlled, by states. The consequence is that the contemporary world is characterized by a multiplicity of overlapping normative orders that rely on different organizational principles: for example, some are territorially bound and some are functionally delineated. Governance structures have emerged as the form through which the multiplicity of orders is linked together. They are inter-contextual forms which simultaneously serve as buffer zones and transmission belts between these orders. As such, governance structures can be understood as institutional mechanisms that fulfill the function of ensuring the societal embeddedness of autonomous normative orders in the wider world through increased reflexivity.

The type of law which has emerged in order to structure the governance phenomenon reflects the societal function of governance structures. Transnational law is an “in between worlds” law in the sense that a central aspect of transnational law is the framing of learning processes capable of ensuring mutual adaptability between normative orders. As such transnational law fulfills a different function than nation-state law which in essence remains oriented towards the upholding of already established normative expectations. As governance structures are the no man’s land between normative orders, they possess an intrinsic political quality. They are the battlefields were the delineation of normative orders are established and continuously reaffirmed. Grasping the kind of political processes unfolding within governance structures is however conditioned by the development of a concept of the political which reflects the inter-contextual function of governance structures.

"Hegel decretó que «el búho de Minerva solo emprende el vuelo al anochecer» subrayando con esto que los avances sociales solo pueden ser comprendidos retrospectivamente. El estado actual de la investigación sobre governance parece confirmar este diagnóstico. Su surgimiento ha estado en marcha prácticamente durante todo el siglo XX; en tanto, la semántica sobre governance puede rastrearse hasta el periodo de entreguerras. Pero solo en la aurora del nuevo milenio los estudios académicos sobre derecho, ciencias políticas y relaciones internacionales pudieron hacerse cargo de estos nuevos avances. Más aún, después de casi dos décadas de investigación sobre governance se han dado solo dos de tres pasos en la construcción de un paradigma. Primero: el término governance ha sido adoptado como una expresión genérica pero inherentemente imprecisa y controvertida que designa un vasto universo que incluye toda clase de estructuras, desde organizaciones internacionales, empresas multinacionales, ONGs, hasta estructuras administrativas nacionales y locales. Segundo: este paso preliminar ha sido continuado por un enorme conjunto de estudios empíricos relativos a los tipos de procesos en los que estas estructuras organizacionales se encuentran vinculadas. Estos engloban desde comitología y casos de la OMC —en el contexto de la Unión Europea— hasta redes globales interestatales, organizaciones de responsabilidad social empresarial (RSE) y la gestión de ONGs y actividades de base comunitaria. Sin embargo, el paso final y decisivo en la construcción del paradigma, a saber, avanzar hacia una teoría general del governance, no se ha materializado.
"

Statehood has undergone rapid expansion in both depth and scope in recent history. It has, however, always been a limited form of social ordering which has operated in conjunction with other forms of social ordering located beneath, beside and above the state. The central structural cause behind the expansion in statehood was the implosion of the eurocentric world and the subsequent decolonisation processes that unfolded in the twentieth century. Besides leading to a globalisation of statehood, this transformation also implied a transformation of transnational forms of ordering away from colonial centre/periphery differentiation and towards the kind of functionally delineated regulatory regimes that represent the dominant form of transnational ordering today. Understanding the consequences of this fundamental transformation is the central issue with which contemporary transnational legal and political theory, including the conflicts law approach, is dealing with.

REACH is a new European Community Regulation on chemicals and their safe use. This Regulation is a hybrid that combines hierarchy and heterarchy from a both a legal and an organisational perspective. Such hybridism is, however, not a feature that is particular to REACH. Rather the EU itself must be understood as a hybrid, thereby making REACH a hybrid operating within a hybrid. The hybrid structure of REACH reflects its societal function, which is to simultaneously separate and combine politics, science, economy, health and the environment within a single legal framework. The legitimacy of REACH reflects its hybrid structure in the sense that it is based on a combination of democratic, procedural and deliberative components.

The EU is a structure positioned “in-between” hierarchically organized nation-state governing structures and heterarchically structured global governance structures. Thus, the EU is a hybrid which relies partly on governing and partly on governance. This two-dimensionality is a central reason why the question of the constitutional character of the EU remains fundamentally unresolved. Thus, it is proposed that the EU should aim for developing a constitutional form aimed at alleviating the tensions inherent in the European construction through a conflict of laws approach. In order to respect the hybridity of the Union, such an approach, however, will have to be based on a three-dimensional conflict of laws concept. It would have to take account of horizontal conflicts between territorial units, vertical conflicts between the EU and its member states, and also horizontal conflicts between the functionally differentiated structures of the wider society.

The concept of embeddedness plays a central role in the segment of economic sociology and social theory which is inspired by the works of Karl Polanyi. But to the extent that embeddedness is understood in a substantialist manner, implying the existence of a unitary lifeworld, the desire for embeddedness is an impossible aspiration under modern conditions. Throughout the modern era it is however possible to observe the emergence of complex societal stabilization mechanisms, which serve as substitutes to traditional forms of embeddedness. The emergence of function specific cultures, in the form of, for example, legal, political and scientific cultures, establishing a ‘second nature’ in the Hegelian sense, is one example of this. Other examples are (neo-)corporatist institutions which fulfilled a central stabilising role in classical modernity and the kind of network based governance arrangements which fulfil a similar position in today’s radicalised modernity.

The concept of “network” has become the most central concept within the work of Karl‐Heinz Ladeur (KHL). It is an omnibus concept which he uses to extrapolate insights at all levels: It is used to provide a general framework at the level of Gesellschaftstheorie (social theory) in the sense that it provides insights into the general structure of society and thereby into the context within which legal processes unfold. At the level of organizational theory it provides a basis for understanding the transformation of organizational structures as it unfolds through the breakdown of hierarchy and the boundaries between the private and the public, just as the network concept plays an important role in its attempt to formulate a legal theory which is adequate for a society which, according to KHL, has become postmodern.
This article seeks to critically examine the function and “added value” of KHL’s network concept in relation to the European integration and constitutionalization process. It is argued that the concept provides a very useful overall framework, but that its usefulness might be enhanced when combined with more concrete studies of the actual function of networks in the EU context, just as the network concept should be more directly combined with an attempt to develop a conceptual framework for the juridification of networks.

Gunther Teubner has raised the question of "What comes after the state?" Behind the question lies the insight that society is currently undergoing deep structural transformations in the sense that state-centered society, which was a strong characteristic of 19th and 20th century society, is fading away at the same time as new forms of trans-national structures continuously gain in importance. One of the many consequences of this development is, seemingly, that the political system is no longer capable of serving as the primary "partner" of the legal system, thereby reducing the impact of democratic decision-making on the legal system. Teubner`s theory of reflexive law thus needs to be complemented by a theory of reflexive politics.

In the European setting, non-legal and non-political functional systems, such as economy and science, have increasingly substituted their structural couplings with the legal and political systems in the nation state form with couplings to the European Union (EU). A central reason for this is that the couplings to the EU are less tight than the national couplings, thereby granting a higher degree of autonomy to the non-legal and non-political systems. The reason for the reduced tightness of European couplings when compared with national couplings should be found in the internal structure of the EU. Although the EU possess a number of features which gives it a state like character, the EU should rather be understood as a conglomerate which bundles a whole range of rationality forms in a horizontal manner. The central societal contribution and function of the EU’s political system is thus to reduce asymmetric relations between a multiplicity of functional differentiated spheres of society rather than producing substantial unity. Consequently, and in contrast to the political system in the nation state form, the EU does not describe itself as a system which is superior to other functional systems.

Chapter 9. Formalisation or De-formalisation through Governance? Introduction : 189; The Expansion of Knowledge : 190;  The Evolution of European Science Co-Operation: 191; The European Research Area: 193; The OMC in Research and Development: 195; The Function of the OMC: 197

Critical theory was always characterised by a particular attempt to develop a general theory of society on the basis of an integrative approach characterised by a combination of philosophy and sociology and of normative and descriptive approaches. In Frankfurt, the original epicentre of this particular school of thought, this has however come to an end. Contemporary Frankfurt theorists essentially have abandoned the sociological and descriptive dimension and re-casted what is left of the Frankfurt School into a subdivision of Anglo-American analytical political philosophy. As apparent from the book under review and his entire oeuvre, Hauke Brunkhorst, the last of the Mohicans of real Frankfurt style critical theory, have always resented this development. He has therefore found himself in internal exile at the University of Flensburg, the intellectual equivalent of Siberia in the German academic context, for the last decades. The exceptionally brilliance of the book under review thereby confirms the old insight, which has been illustrated again and again throughout history, that the best books tend to be written in exile. Written by authors who did not correspond with the prevailing Zeitgeist but who nonetheless choose to stick to their guns.
The book literally begins by the dawn of man and ends with an analysis of the pressing problems and challenges characterizing contemporary society. As such the book also reads as a history of the world in its entirety at the same time as the its main focus is on four revolutionary processes: The Papal Revolution of the 11th and 12th centuries, the Protestant revolution of the 16th century; The Atlantic Revolution of the late 18th century and the Euro-Asian (in particular but not only the Chinese and Russian revolutions) of the early 20th century. Finally, as a fifth wave, the global transformations which came about through decolonisation and the transitions from authoritarianism and totalitarianism to democracy and human rights in the latter half of the 20th century are analysed. Full review available at: http://onlinelibrary.wiley.com/doi/10.1111/j.1467-6478.2015.00710.x/abstract

This is an extremely ambitious book. Its point of departure is that the study of the origins, status and functions of constitutions was a central element of early sociology. It is argued that classical sociological scholars such as Tönnies, Durkheim and Weber initiated a break with the normative ideals of the Enlightenment and established the defining features of a positive-descriptive political sociology through the study of constitutions. The strong centrality of the study of constitutions in political sociology, however, drastically declined in the post-war period. Instead, constitutional theory and practice became dominated by formalist-normative approaches developed within the realm of legal and political philosophy. The book is aimed at turning this development around by introducing a fully-fledged empirically founded, essentially positivist, sociological theory of constitutions capable of re-establishing constitutional sociology as a specific sub-discipline within law, politics and sociology.

The use of constitutional language and concepts has enjoyed a widespread expansion in recent decades. From the relatively narrow confinement within national constitutional law discourses it has, in the wake of globalisation, crept into almost all legal sub-disciplines as well as into political science, international relations and sociology. Does this development mark the triumph of constitutionalism or is it rather an indication of its demise taking the form of an increasingly desperate attempt to maintain the constitutional outlook in the face of structural developments which threaten to undermine state-based constitutional orders? This crucial question, which goes to the core of the future of democracy and the rule of law, is the topic of this brilliantly edited volume.

Theme and Purpose: The centrality of law for the study of political economy was widely recognized at the time of the emergence of the political economy discipline in the 18th century as well as throughout the 19th century. From the outset law was considered an essential component of political economy studies because social phenomena such as capital, labor and power gain their form and basic characteristics from their status as legal institutions. Since then the economic discipline has however increasingly detached itself from neighboring disciplines leaving political economy to economic sociology and political science at the same time as these disciplines increasingly has underplayed the centrality of law in relation to their assessment of political economy institutions. On this background, the conference aims in general terms to reinvigorate the focus on law and reassessing the role of law in political economy contexts. More specifically it aims to increase our theoretical understanding of the function law fulfills between economy and politics and to historically assess the evolution of law and legal thinking in relation to the issue of how law contributes to the stabilization of economic and political processes at the local, national and transnational level of world society.

Conveners: Antje Vetterlein and Poul F. Kjaer

Concept
Great transformations are unfolding within contemporary society due to developments related to, among other things, the financial crisis, increased globalisation, rapid technological developments, ecological challenges and new types of political conflict. Common for these otherwise very diverse developments is a consistent demand for regulation. Whereas de-regulation, although de facto serving a re-regulatory rather than a de-regulatory purpose, was a buzzword from the 1980s onwards the tide seems to have shifted towards a new demand for governance driven regulation. Accordingly, a multitude of new governance frameworks aimed at stabilising, orchestrating and indeed regulating increasingly globalised social processes has emerged in recent decades.
In most cases great hopes and demands are attached to the potential of regulatory governance. The notion of regulation is however a contested term which has multiple meanings and which is deployed in a large range of different institutional and social settings characterised by different intentions, objectives and normative underpinnings. In addition, the reference to new types of governance in many instances remains elusive and difficult to pin down in practise.
Against this backdrop, this workshop sets out to explore and reassess the notions of regulation and governance and their relation as well as the wider social phenomenon of regulatory governance and especially the potential of governance-driven regulation as a driver of societal change. It does so by raising a number of questions such as: Can the hopes and demands attached to the notion of regulatory governance possibly be fulfilled? What is the functional and normative content of regulatory governance? And to what extent can regulatory governance measures serve as tools for the realisation of normative endeavours?
In order to pin down the notion of regulatory governance and to explore its multifaceted meaning, potential and impact as well as the social praxis of regulatory governance the workshop will approach the phenomenon from three different angles: rules, resistance and responsibility.
Referring to rules, the objective is to explore the functional and normative nucleus of regulatory governance. What is the purpose and mechanisms of regulatory governance and what can regulatory governance actually “do”? How have the praxis, form and content of regulations changed over time? And what implications does this entail for governance? Increased globalisation, for example, has implied an increased focus on the regulation of horizontal governance networks and processes of transfer between different societal contexts, due to expanded supply chains and intensified knowledge transfers. In other words, what we expect in this part are theoretical and empirical contributions that examine regulations in specific policy, their functioning, change and impact on governance structures.
Resistance, as the second dimension, refers to the potential of regulatory governance as a mode of reacting to structural pressures and the general volatility and contingency emerging from “the market” and other developments in relation to, for example, technological developments. Resistance can take many forms insofar as it can be observed within formalised political processes, within governance networks, in civil society. Yet, resistance also takes place in less organised ways, for instance within firms or other types of organisations and in local contexts on the micro-level. This dimension therefore starts from the assumption that rules and regulations are constantly contested and invites contributions that shed light on a variety of such instances of contestation and thus the transformative power of regulatory governance.
Finally, responsibility highlights the normative foundation of regulations and thus addresses questions of legitimacy within regulatory governance. Regulations always relate to broader, more fundamental values that function as their justifications. The way in which social problems are defined and framed has implications for what policy solutions can be perceived and thus also what rules and regulations are possible. This in turn implies that things could be different when societal values change, which will also affect the allocation of authorities and consequently responsibilities. We can observe how responsibility shifts from state actors to the private sector for instance or from global levels to local contexts. In this part we therefore invite contributions that investigate such changes and answer more general questions such as: To what extent can regulatory governance serve as an instrument for developing frameworks of increased reflexivity, justification and legitimation? And to what extent can regulatory governance be understood as a central tool for societal development and the construction of new sites responsibility?
Papers focusing on both private and public regulation and their interaction as well as local, regional, national and transnational sites of regulatory governance are most welcome. The call is furthermore open to papers with a more theoretical and conceptual take as well a more empirically oriented approaches.

Over the past decades, large segments of the scholarly debate has been dominated by the perception that state based public authority has been increasingly challenged or even substantially eroded due to increased economic globalisation, the migration of regulatory capacities into transnational settings, and an ever-shorter life cycle of authoritative knowledge. However, many of these accounts fall short of grasping the transformation of authority. They conflate public authority with state authority and overlook how private norm creating frameworks also establish and fulfil public functions. On this background, the conference sets out to redefine the very notions of public and private authority and their relation to and relevance for the related concepts of law, power, coordination, legitimacy and democracy.

The conference is sponsored by the European Research Council within the framework of the project ‘Institutional Transformation in European Political Economy – A Socio-Legal Approach’ (ITEPE) hosted by the Department of Business and Politics, Copenhagen Business School and is the 4th conference within the ITEPE conference series (www.itepe.eu).

The process of European integration was from the outset marked by an integrationist teleology as formally stated in the objective of " ever closer union among the peoples of Europe " in the preamble of the Treaty of Rome. The core message of The End of the Eurocrats' Dream is that this integrationist teleology has come to an end. The diversity characterising the Union after its consecutive enlargements, the rupture introduced by the Euro-crisis and the EU's response to it, the string of other crises such as the refugee crisis (to which one can now add the rule of law crisis in Hungary and Poland and the Brexit trajectory which have emerged or further developed since the book went into print) reflect, according to the editors, deeper structural problems concerning how the EU has developed since Maastricht. Effectively the editors and many of the contributors are therefore arguing for a scaling back of European integration to a level which they deem sustainable. They argue, however, that this message should not be considered anti-European. The EU has gone a bridge too far and threatens to implode due to overstretching. The aim is therefore to save the European project through a limited and measured retreat. As such the book provides a counter argument to the mantra of Brussels, Frankfurt and Luxembourg which seems to imply that the only option available is to dig in and fight to the last bullet. A number of proposals are put forward in relation to needed institutional changes and alterations of substantial policies. Fritz W. Scharpf, for example, proposes a return to an improved version of the European Monetary System, Augustín José Menéndez argues for a strengthening of the Member States capacities to collect taxes rather than a transfer of tax collecting powers to the EU as part of a solution to the crisis, and Giandomenico Majone suggests a " Europe of clubs " where different groups of countries can engage in common policies organised around functional tasks. The books does however not set out a common manifesto or programme. This means that the book, while providing a string of very thoughtful and important insights, take the shape of a collection of bits and pieces instead of providing a comprehensive reform proposal. In this way the book ends up reflecting the status of the EU itself as a constitutional conglomerate of bits and pieces. But what will the implications of abandoning the " ever closer Union " teleology be? At the most general level teleologies can be considered one of the core features of modern societies. German philosopher Christian Wolff coined the term teleology in 1728 and since the Sattelzeit from the mid-18 th to the mid-19 th century the organisation of modern society has been centered on the promise of the future achievement of specified end goals. The emergence of modern teleologies reflected a fundamental restructuring of society through the introduction of a linear concept of time and a corresponding reorientation of the outlook of society towards the future rather than the past (Koselleck 1979). The turn to teleology is clearly expressed in modern constitutional arrangements. Counterfactual normative imperatives codified as constitutional principles or taking the shape of comprehensive policy programs with quasi-constitutional status stipulating future intentions are intrinsic to the organisation of modern legal orders. The five French Republics, for example, all subscribed to the counterfactual idea of bringing the values of the French Revolution to the rest of world and as Jürgen Habermas argued, Westbindung, or (reintegration n into the west, was the overarching constitutional imperative guiding the Bonn Republic. Even a weakly institutionalised legal order such as the WTO regime might be seen as based on a counterfactual idea of universal non-discriminatory free trade. Modern society is, in other words, characterised by a functional need for normative fix points aimed at stabilising social processes and providing criteria for choosing between the multiplicities of policy options which always exist.

The UK has voted to leave the European Union bringing both the UK and the EU into uncharted territory and a deep crisis. The magnitude of this decision for the future development of Europe can hardly be overestimated and yet the crisis unleashed by the referendum result would probably be manageable if this was the only crisis Europe is confronted with. This is however not the case. Europe is struck by a whole series of different but yet mutually reinforcing crises. To mention just a few: Handling the aftermath of the financial crisis which became visible in 2007, the Eurozone crisis which was unleashed by the financial crisis but which then took on a life of its own, the still unfolding migration crisis and the security crisis linked to terrorism and Russian aggression against its neighbouring countries, most notably the Ukraine, the substantial challenges to the rule of law and democracy which have occurred in recent times in countries such as Hungary and Poland and the emergence of secessionist movements from Catalonia and Flanders to Scotland.