In the western context, law has two functions. It upholds normative expectations and it transforms social phenomena. The latter is expressed through the form-giving function of law, as law designates particular social phenomena, such as, for example, economic, political or religious. Inside such overarching categories, further subcategories can moreover be observed. In relation to economic processes, the legal institutions of competition, contract, corporation and property are, for example, classical examples of the form-giving function of law. The dual function of law is briefly illustrated through a genealogy of imaginaries of law distinguishing between four historically dominant types of law: ‘Law as purpose’; ‘law as a tool’; ‘law as an obstacle’; and ‘law as reflexivity-initiation’. On this background, ten core dimensions of what might become a new episteme of transformative law are fleshed out with the aim of answering the question to what extent it can act as an alternative to the previous four types of law.

While legal analyses of political economy typically centre on events and processes within the market, this discussion argues that contemporary dilemmas requires attention to labour and productive activity at its edges and beyond. Questions surrounding labour provide an unparalleled vantage point from which to assess how groups are differentially situated within the economy, especially at moments of economic crisis and transformation. The constitutive role of law in market relations, in turn, makes legal analysis fundamental to understanding how risks and rewards at work are distributed.

Reflecting on the role of macroeconomic governance to work, evident in times of crisis in particular, and drawing upon concepts and tools developed within critical legal thought, this paper analyses two sites of labour, unpaid household care work and informal labour, that are at the centre of distributive struggles around work now. As the historical separation of the household and market labour discloses, transformations of legal form, and classification played a critical role in the simultaneous production of waged labour and valueless care. Similar processes are underway in labour markets now; thus, understanding the legal constitution of value and of work itself remains central to questions of inequality now.

Bargaining analysis as well as taxonomies of family law suggest the significance of a wide range of legal rules and their interaction to labour market outcomes and the position of workers. The analysis of informal work points in a similar direction, as contract, competition, and corporate law and beyond are all implicated in the growth of informality and precarity at work. Finally, uncovering the legal foundations of racial fragmentation at work requires attention to multiple legal regimes as well as the conceptual and ideological commitments that sustain them. All engage questions about the role, and transformation, of legal form, classification and consciousness within contemporary political economy.

Inspired by the contributions of Poul Kjaer and Kerry Rittich to this Special Issue, this article extends the reflection on the role and potential of law for social transformation. More specifically, I attempt to build on a revised framing of the constitutive role of law to draw the contours of a transformative instrumentalism, where law functions as an instrument for the articulation of political and social objectives. My account shifts the attention from transformative law’s form to its content, based on the premise that engagement with ‘political’ economy necessarily entails an engagement with the substantive standards that shape social relations of production and define the nature and extent of exploitation. Yet, I argue that the endorsement of law’s constitutive function and the turn to law’s content need not lead to the kind of instrumentalism that exhausts itself in particular policy reforms or prescriptions to assume control over processes of legal coding. Relying on a tentatively redrawn conception of the constitutive role of law that draws from both legal institutionalism and Marxist perspectives, I suggest that instrumentalism may instead be transformative by prioritising material ends, leaving open the question of the concrete legal and institutional forms that will materialise them. The directions of such transformative instrumentalism involve an element of ‘mobilisational democracy’ against the insulation of the economy from democratic control; reforms generative of collective subjects and centres of democratic power (‘non-reformist reforms’); and a focus on the planning and coordinating function of law among diverse – but united in their objective – legal rationales and institutional forms.

The term ‘competition’ is a core notion for social and economic thinking and the organisation of markets. Nevertheless, this paper shows that there is no single acceptable economic imaginary ascribed to the notion in Europe. The search for the meaning of competition is an ongoing journey, from the EU’s very inception 60 years ago to the present day, which is inherently tied to the objectives, scope, and boundaries of EU (competition) law and to socio-economic transformations.

The paper first reviews the history of the notion in both common-usage language and in legal-economic thinking. It exposes the emergence of three parallel, partly conflicting, imaginaries influencing the notion in EU competition law: Keynesian, ordoliberal, and neoliberal. After demonstrating that no single imaginary was adopted by EU primary, secondary, or soft laws, it applies Critical Discourse Analysis to the Commission’s annual reports on competition (1971–2020) in search for the meaning of competition. The paper reveals that the notion of competition had acquired one meaning in ‘hard’ contexts of the enforcement (scope of the prohibition of competition; exceptions or justifications for allowing otherwise anti-competitive behaviour), and another meaning in ‘softer’ contexts (mandates of the competition rules, and to a lesser extent – selection of enforcement priorities). While the ‘hard’ contexts have experienced a transformation from Keynesian and ordoliberal imaginary of competition to a neoliberal notion; the ‘soft’ contexts still invoke a broader notion reflecting influences from all three theories.

Finally, the paper argues that although the lack of a clear definition for competition undoubtedly raises challenges relating to the rule of law, legal certainty, and uniformity, its ambiguity also serves as a powerful tool in safeguarding the durability and legitimacy of competition as an economic imaginary. It allows tailoring the notion of competition to changing legal, economic, and social conditions without a Treaty amendment.

The rise of digital capitalism was marked by significant changes in the processes of value generation and capture in the economy. However, its impact on competition has only been recently explored. Taking a Law and Political Economy perspective we analyse four central developments challenging the traditional competition law framework and raising important questions regarding the broader institutional environment for the protection of competition: the transition towards financialisation and the logic of futurity, in particular in the digital economy, which gives rise to new competitive strategies of undertakings, structured around the ‘shareholder value’ principle; the extraction of economic value through new types of labour, which fall outside traditional employment relationships and hence affect the scope of competition law in the digital economy; the emergence of digital value chains that rely on multi-sided platforms and the formation of digital ecosystems, which challenge the usual focus of competition law on markets; the generation and extraction of value in the digital economy through new types of commodities and natural and artificial scarcities, that shape new social relations of production in accordance with the logic of futurity and lead to the emergence of competitive bottlenecks. Based on this analysis, we emphasize the need for a comprehensive theory-building for competition law and regulation that engages with these new processes of value generation and capture. We highlight how the underlying theories of ‘value’ and the institutional set-up have led to inequality and reduced competition. Existing institutions could not respond to these changes, which led to the initiation of significant institutional reforms. The prevailing conception of competition law had to evolve in congruence with different regulatory alternatives (a ‘toolkit’ approach). The article concludes by analysing how the emerging competition and regulatory compass for the digital economy in the European Union (EU) contributes to this dialectic between value generation/capture and institutional choice.

In the Law of Political Economy perspective, private property is the corner stone right. Constitutionally, it amounts to a right of decision-making as a matter of principle towards the object of property. It is a decentralisation of the State’s sovereignty. This feature entitles owners to set rules in connection with the use of their property to which users of their property must submit. This is the origin of the authority relationships within business firms. Within liberal constitutional orders, this strong enabling characteristic of property was originally designed for individuals only. But business corporations, subsequently introduced in the legal system, have found the way to have access to these same rights. Concentrating productive assets, they have in effect concentrated rights of decision-making as a matter if principle. And the global firms (or enterprises) using corporations to structure their activities now make use of their prerogatives in a global legal space in which the Law of Political Economy is unable to reconnect economic and political issues. One way out of this major issue raised by globalisation is to constitutionalise world private governments. Recent court cases addressing climate change demonstrate that this is a viable solution. 1

This article rethinks the corporation and ‘the social contract with business’ for the post-pandemic era. It uses a double historical orientation centred on the turbulence of the 1930s in Europe and America to insist on the company’s relationship with government, and to explore transformations in the social contract now needed to socialise and ecologise global business. One part of this history looks forward, from Adolf Berle’s modern corporation to the neoliberal corporation and regulatory governance. The article criticises a transformation of regulatory priorities in this era, closely analysing the shift to procedural mandates and questioning the corporate law tactic of ‘enlightening’ companies. The second part looks backwards to industrial modernism and Walter Rathenau in Germany in the interwar era, and also earlier (the late 1890s), to salvage a different understanding of the company and social contract, built around more constructivist visions of law, government and social consciousness. This part of the article is insistent about the metaphysical aspects of law and about developing law’s equalising powers around corporate impactfulness and injustice. It promotes ‘thought’ about collectivism (John Keynes) and the legal and regulatory recalibration that is needed to confront certain amassing challenges of the present. The article makes institutional transformation about shifting onto a different historical axis, whereby we might re-learn collectivist ambitions around the company that co-evolves with law and government, live to the public interest. It proposes a new social contract with business and a new regulatory modus involving law’s ‘Creabimus’ and ‘regulating dangerously’ for situations of widely adverse corporate impactfulness.

In February 2022, the European Commission published the ‘Proposal for a Directive on Sustainable Due Diligence’. This proposal appears a first tentative step to move the European Union (EU) away from a neoliberal conception of corporation. It replaces the wholesale trust in shareholders as the drivers of social progress with a greater reliance on public intervention that, via law, should expand the purposes pursued by corporations and set more sustainable rules for their action. This intended shift towards a more socially responsible, ‘collectivist’ understanding of corporation, I argue, should be seen as part of a broader change in perception of the desirable relationship between the market, government and law in the EU, forced by the many unfolding crises.

In this paper I develop the concept of ‘imaginaries of prosperity’ as an analytical category that should enable us to grasp deep changes in the conception of political economy that the EU is currently undergoing. I use the Commission’s attempt to transform one of the core institutions of the deeply entrenched imaginary of privatised prosperity – the neoliberal corporation – to identify shifts in our background understanding of the economy, politics, government, nature and law which are pointing to the emergence of a more collective imaginary of prosperity in the EU. However, even if Commission’s due diligence proposal represents a visible shift toward such a collective imaginary of prosperity, in the last part of the paper I will argue that a more serious engagement with the question of power and the role of profit is both necessary, and imaginable, if we are to change course from what has led us to the current polycrisis.

Europe’s aggravating housing crisis lies in the blind spots of law. While central in constructing housing both as a home and as an asset, law bears the task of mediating between housing’s multiple – social, economic, and cultural – dimensions. However, inner-legal fragmentation and a legal imaginary of property, the nation state, and its welfare system have depoliticized, deflected and rendered inaccessible the ‘housing question’. Turning to tenancy contract law in particular, this article argues that the ‘social’ orientation of this early example of a ‘materialised’ field of contract law is not only ill-suited to reflect the recent structural shifts in the housing market brought about through financialisation. Tenancy contract law has effectively taken a conservative drift by claiming to adequately administer the bilateral landlord–tenant relation while being insensitive to macro-level developments. Tenancy contract law reindividualises tenant responsibility in the eye of hardships whose roots lie outside the contractual sphere and thereby furthers, rather than curtails, neoliberal housing policies. As a reaction, the article proposes political economy as a conceptual vantage point from which to develop a ‘holistic housing law’. Such a perspective combines a concern for democratic and collective agency with careful attention to law’s tacit and technical role in shaping the flow of finance and the techniques of landlords’ governmentality. Part of this is a ‘transformative tenancy law’, to be reformulated to protect not against landlord bargaining power in the first place but against a hegemonic and expansive market rationality that structurally corrupts the social and material meaning of housing.

This comment aims to show how Klaus Eller's paper on ‘The Political Economy of Tenancy Contract Law’1 raises the stakes of private law scholarship and contributes to the larger project of remodeling legal institutions in a progressive direction. The comment starts by contextualising the rapid spread of the Law and Political Economy (LPE) movement; illustrates through examples the generative impact of LPE on contemporary contracts scholarship; and highlights two strands of Eller’s original contribution to such literature: a welcome reflection on the value and limits of Materialisierung, and a radical widening of the private law inquiry to include institutional dimensions of legal reform. The point of fostering such new directions is not to ditch the very logic of private law and its endogenous mechanisms of justice, which are still essential to progressive legal work. What is no longer tenable is to keep seeking socially oriented solutions exclusively within the private law arsenal of possibilities, even when it has become obvious that only a synergic approach can produce accurate diagnoses of – and perhaps cures for – the structural predicaments of the market economy.

This intervention expands Stefan Eich’s analysis of the parallel between language and money in The Currency of Politics by emphasising the increasing importance of linguistic communication within processes of production. This expansion has had an impact on monetary policy and on the communicative strategies of central banks. The suggestion is to integrate Eich’s call for the politicisation of monetary design with an appraisal of post-fordiist productive processes and the importance of money creation for the valorisation of those processes. If this reading of the expansion of the logic of economic value to linguistic communication is correct, then any call for a monetary design of money that works like public speech ought to be carry forward cautiously, in light of the colonisation of the latter (speech) by market forces

Stefan Eich’s The Currency of Politics reconstructs and contextualises the monetary understanding of some of the most renowned political thinkers in history. By contextualising each author’s conceptualisation (subjective perception) against their respective contemporary monetary frameworks (objective institutional dimension), Eich elaborates a narrative composed of cumulative layers leading to a double conclusion: that money is political at its core, and that current policies are actively de-politicizing money. These relevant findings are the point of departure of a reflection on the role that law, and constitutional theory in particular, must play in the configuration of Europe’s common currency to overcome some of the most acute difficulties the process of integration is currently experiencing. If the triad law, money and public discourse is supposed to articulate social life in the polity, European monetary integration has neutralised them by neglecting the relevance of one of their key features: civic reciprocity. Reactivating the three mechanisms of social integration requires an exercise of constitutional imagination able to integrate interdisciplinary knowledge about money within an institutional framework able to prevent the concentration of unlimited power in unaccountable institutions and to promote and fully exploit the democratic potential of money.

This essay engages with Stephan Eich’s The Currency of Politics. It finds that the book pursues two goals at once: a minimalist goal of bringing money as a subject of inquiry back into the fold of political theory and a maximalist goal consisting in the stated ambition to ‘articulate more democratic visions of the future of money’. It interrogates Eich’s effort to harnesses a historical perspective to normative claims from the standpoint of a historian of pre-modern Europe. More specifically, it asks what role close reading, intertextuality and contextualisation play in Eich’s approach; why he recognises certain episodes from the (distant) past rather than others as relevant to current predicaments and potential future scenarios; and why he singles out the English financial revolution of the 1690s as the first relevant moment of crisis after the monetary reforms undertaken in Athens in the sixth century BCE.

Stefan Eich’s The Currency of Politics offers us a new way of looking at the EU’s sustainable finance trend, one that allows us to see how the ‘greening’ financial transactions creates “green money” and thus intertwines with questions of justice and democracy. In this contribution I explore how The Currency of Politics can help us understand the significance and the constitutional implications of the transformation of the euro into the ‘currency of the green transition’ as it has been referred to by Eurogroup’s President in 2021. I show how the three trends of EU green bond issuance, granular sustainable finance regulation and the progressive greening of monetary policy are moulding the euro in a political sense as the ‘currency of the green transition’ as much as the legal tender. Euro currency becomes in this sense ‘a governance project’ for the sustainable transition. This perspective offers multiple points of engagement with the themes of Stefan Eich’s important book. For example, the claim of privatisation of money creation must be qualified to reflect on the implications of the granular way in which EU law defines what green money is. At the same time, while a ‘green currency’ creates spaces for engagement and new forms of organising a polity, it still remains largely removed from ordinary citizens as ‘technocratic’ rather than ‘democratic’ self-government.

The history of European integration, even if yet a rather minor sub-field, has seen a good deal of developments in the last two decades. New scholars have joined the field and new topics of research have been considered. Megan Brown’s The Seventh Member State is an impressive contribution to the literature. The book does not only demonstrate that a main goal of the European Economic Community was to rescue the imperial nation-state, but illustrates the point by means of considering the complex relationship between France and Algeria, also marked by Algeria becoming part of the territory of the European Economic Community. As Brown shows, this had lasting effects, especially after Algeria’s independence. Doubts, however, can be raised regarding the extent to which the title of the book is not a trifle exaggerated. Not least because Algeria was never offered the status of member state, but remained subordinated to France. If its territory was part of the EEC, it was indeed as a result of the peculiar status assigned to Algeria under French law. In addition, it could be argued that the conclusions of the book would have been strengthened if a wider set of archives and literature would have been consulted (Dutch and German, and above all Algerian literature).

In The Seventh Member State, I show that imperial concerns were central to the original shape of the European Communities, in particular French anxieties about Algeria. The latter had been imagined by several generations of French as an extension of the metropole across the Mediterranean, while at the same time a majority of the population was not granted citizenship rights. While in 1951 France opted for the exclusion of Algeria from the territory of the Coal and Steel Community, in 1957 the strategy followed was the opposite, and Algeria was made part of the EEC, not least because this seemed to reinforce French claim that the territory was part of France and, perhaps above all, it rendered possible to obtain the financial support of the other five founding states for costly Algerian development projects. Labelling Algeria a seventh member state, as is done in the title of the book, calls the attention of the reader not only to the sweeping expanse of postwar European institutions, which lasted even after states such as Algeria gained independence, but also to the contestable and contested conception of Member State. Mainly intended as a piece in French history, the book illuminates the extent to which Europe was the main vehicle of the rescue of the imperial nation-state, and how white supremacy and colonial rule were maintained through a peculiar combination of the rule of law and states of emergency.

As the Second World War was drawing to a close in 1944, two great works of political economy were published. One of them was Friedrich August von Hayek’s The Road to Serfdom,1 inspiring the defenders of free market movements ever since and up to the present. The other was Karl Polanyi’s The Great Transformation.2 This essay will focus on Polanyi but also pay tribute to Hayek. Contrasting the two helps to understand both of them better. Of the two, Hayek, the Nobel prize winner, is of course more widely known and by far more influential. But Polanyi’s work, too, has achieved and has been attracting as of recently such attention that one of the Directors of the Max Planck Institute for the Study of Societies in Cologne proclaimed that ‘we are all Polanyian now’,3 not only in economic sociology, but also in related disciplines, including, of course, political economy and political theory. A plethora of aspects of The Great Transformation are very widely discussed. This essay will be concerned with the not-so-well explored importance of Polanyi’s work for European Law and legal scholarship in general, including his theorems on the ‘embedded economy’, his conceptualisation of labour as a ‘fictitious commodity’ as well as the notion of counter-movements. It will then juxtapose Polanyi’s expectation of a new international order with the development of the European integration project and sketch out the contours of the democracy-enhancing conflicts law and its affinities with Polanyian core normative principles.