The Crisis of Law and the European Crises: From the Social and Democratic Rechtsstaat to the Consolidating State of (Pseudo-)technocratic Governance

Abstract

Europe has been badly hit by several overlapping crises. This article explores how they were triggered by and, in turn, aggravated a structural crisis of European law. It spells out the concrete implications of ‘austerity’ in constitutional terms. First, the crises have led to ad hoc decisions and structural reforms honouring European constitutional norms in the breach. Secondly, the governance of the crises has facilitated the radicalization of the ongoing mutation of European constitutional law, in particular, changes to the structural and substantive constitutional law which have locked in a constitutional vision of sorts at odds with the regulatory ideal of the Social and Democratic Rechtsstaat. Thirdly, the very nature of European law, and in particular its role as the grammar of democratic law, has been endangered: European law is in the process of becoming an instrument of authoritarian governance. The final version of this research has been published in the Journal of Law and Society. © Wiley