European Crises of Legally‐Constituted Public Power: From the ‘Law of Corporatism’ to the ‘Law of Governance’

Abstract

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 dual (trans‐)national re‐constitution of Western Europe in the years immediately after the Second World War, which the European integration process was an integrated part of, successfully remedied this development. However, over the last decades, Europe has experienced a ‘turn to governance’, which also implies an erosion of the distinction between the public and private realms, and increasingly challenges the normative integrity and functional capacity of law. This development has been further reinforced by the new post‐crisis legal and institutional architecture of the EU as it implies the emergence of a ‘dual Union’ partly based upon formality and partly upon informality and an increased suspension of open‐ended democratic decision‐making