Where the Law Ends

von Christian Joerges

“Die Wirtschaft ist das Schicksal” (the economy is our destiny) – this insight of Walter Rathenau, politician and industrialist, the white hope of the young Weimar Republic, murdered in 1922, is of disquieting topicality. For more than a decade, we have witnessed a veritable boom of European constitutionalism which sought to pave the way towards an ever closer and ever more democratic Union. These debates were intense. They were nevertheless characterised by a benign neglect of the constitutional dimensions of “the economic” and the failure to comprehend its political functions. There are, of course, exceptions. The authors of the “constitutional analysis of the Eurozone crisis” could build upon important pertinent preparatory work. My comments on their pathbreaking monograph will focus on the encounters of the German Constitutional Court and the CJEU with Europe’s economic constitution and its present crisis management. This focus on the jurisprudence reflects, on the one hand, the integration through law tradition and the prominent role of the ECJ therein. It is, by the same token, a reflection on the potential of constitutional adjudication in Europe’s state of emergency, in which a compound of executive and governmental power directs Europe’s affairs. Although the Tuoris deal with the CJEU and its recent Pringle case much more extensively than with the German court, I, nevertheless, will start with the latter. Its pertinent jurisprudence is not only richer, it was also often perceived as a sword of Damocles over the future of the common currency.

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