Prefigurative practices aim to foreshadow the more just society a radical political transformation would bring. So far, there has been little attention for the possibility of prefigurative legal practices. Perhaps the assumption is that prefigurative law is a contradiction in terms. Given the law’s structural complicity in social oppression, marginalisation, and exploitation, how can it ever be part of the solution? The idea of a prefigurative EU law may seem even more absurd. The EU and its laws are deeply entangled with capitalism, racism, imperialism, and premature deaths at its borders. Surely, EU law is beyond repair? But is it? This article suggests the opposite. It argues that a radically different EU law could become a source of hope for a society without structural oppression and marginalisation. Most concretely, it proposes to occupy the European Commission’s recent plans for a 28th legal regime. To this end, it shows how the Commission’s idea of a deregulatory sandbox could be turned into a prefigurative proposal, foreshadowing the legal non-regime for a radically horizontal European society without borders.

Half a century ago, Martin Shapiro discovered that European constitutional scholarship was stuck at a stage of ‘constitutional law without politics’, presenting the EU ‘as a juristic idea; the written constitution as a sacred text; the professional commentary as a legal truth; the case law as the inevitable working out of the … constitutional text; and the constitutional court as the disembodied voice of right reason’. Recent efforts to doctrinally construct the values in Article 2 TEU show that the mistakes identified by Shapiro persist to this day. This article examines the proposals for constructing Article 2 TEU by Armin von Bogdandy and Dimitri Spieker, and offers three criticisms: First, their doctrinal constructivism is ill-suited to constitutional reasoning. Second, their reasoning has evolved in a way that their work has become self-contradictory. Third and most importantly, especially due to the evolution of their thinking, their scholarship amounts to constitutionalism without principle. Not only does their work lack consistent principled foundations, it also neglects the principled choices underlying EU constitutional law. Moreover, as they do not maintain any critical distance to the CJEU, their work does not offer a principled basis for evaluating its case law. Finally, and most critically, the principles informing their arguments produce an increasingly undemocratic and unconstitutional view of EU law. To address these deficits, I revisit the call for a more contextualised study of European law made by its earliest proponents four decades ago, and demonstrate its continued relevance. Rather than pursuing institution building, EU constitutional scholarship should examine and critically interrogate the socio-political choices underlying the evolution of EU constitutional law.

This paper examines the evolution and implications of ‘must-carry’ obligations in the regulation of online platforms, with a focus on Europe. These obligations, which restrict platforms’ discretion to remove or deprioritise certain content, represent a novel regulatory response to the growing power of platforms in shaping public discourse. The analysis traces developments at EU and national levels. At the EU level, it considers rejected must-carry proposals during the drafting of the Digital Services Act (DSA) and the adoption of Article 18 of the European Media Freedom Act (EMFA), which grants privileges to recognised media service providers. At the national level, it examines Germany’s prohibition on content discrimination, the UK’s Online Safety Act, and Poland’s abandoned legislative proposal on freedom of expression online. Case law from courts in the Netherlands, Germany, Italy, and Poland further illustrates the emergence of judicially crafted duties resembling must-carry obligations. The paper argues that these measures are best understood as special treatment rules that privilege particular speakers, notably media organisations and politicians, by limiting platform autonomy in content moderation. While intended to safeguard pluralism and access to trustworthy information, such rules risk creating a two-tier system of expression in which established voices receive disproportionate protection while ordinary users remain vulnerable. Protections for politicians raise concerns about shielding powerful actors from justified moderation, whereas media privileges, though more defensible, remain limited in scope and potentially counterproductive, especially when exploited by outlets disseminating disinformation. The conclusion is that compelled inclusion and preferential treatment are unlikely to offer sustainable solutions to the structural imbalances between platforms, media providers, and politicians. More durable approaches should focus on strengthening journalism through financial and structural support, fostering innovation and local media, and prioritising user empowerment measures. Only systemic safeguards of this kind can effectively promote pluralism, accountability, and resilience in the digital public sphere.

European Union (EU) consumer law is rather one-size-fits-all, meaning that it largely disregards differences between consumers and their protection needs. Consequently, there is underprotection, which can not only harm the internal market but is also at odds with the EU’s commitment to ensuring a high level of consumer protection. To be able to propose directions for improving the differentiation between consumers in EU consumer law, this paper answers the question of how the differentiation between consumers is currently operationalised and how that results in underprotection. Building on, among others, Black’s regulatory theory of the nature of legal rules, it is argued that a legal rule’s level of differentiation depends on how accurately its application conditions predict the situations in which it should apply, considering its aim. Through the application of this theoretical framework, it is argued that it is not just EU consumer law’s status-based application conditions that disregard individual differences between consumers. EU consumer law’s fact-based and norm-based application conditions also do not prevent the status-based application conditions from paving the way for underprotection. In support of this argument, several bottlenecks regarding the differentiation between consumers are identified, including the use of the average consumer benchmark, the emphasis on situational fact-based application conditions, and the rather limited role of norm-based application conditions. Altogether, these findings provide several directions for improving the differentiation between consumers in EU consumer law.

The ecological transition needs a shift in the definition of the role of the state from a market-correcting to a market-steering actor. This transformation inevitably reverberates within private law, whose institutions participate in distributing the social and economic burdens of sustainability policies. Focusing on the housing sector as a paradigmatic site of tension between environmental imperatives and social justice, the paper examines how measures aimed at improving the energy performance of buildings and promoting urban greening can generate regressive distributive effects, including rising housing costs, green gentrification, and heightened risks of indebtedness and displacement for vulnerable groups. Against this background, the paper argues that private law must be reconceptualised as a tool capable of mitigating these structural inequities.

The ‘Digital Economy and Society Index’ (DESI) Dashboard for the Digital Decade is a set of indicators created by the European Union in the early 2010s to monitor Member States’ progress in pursuing the EU’s Digital Agenda, as well as many of the goals of the UN’s 2030 Agenda for Sustainability. The figures provided by the Dashboard are perceived by academics, the media and the general public as objective neutral data on the progress of Member States towards digitalisation, and on the promotion of sustainable development. This short contribution unpacks the Dashboard, examining the variables it considers and the methodology it employs, and finds out a very different picture. The Dashboard mainly assesses how easily people can access products and services online. It thus promotes a pro-market digitalisation agenda that excludes any other possible alternative and has little to do (if any) with the idea of sustainability. As is often the case with quantitative measurements of social phenomena, behind its seemingly scientific numerical veil the Dashboard conveys a policy vision that is hardly compatible with the objectives the Dashboard allegedly promotes. The essay thus raises broader questions as to the legitimacy of governing through indicators and as to the role of EU in shaping Member States’ digital future.

This is a commentary on von Bogdandy’s article ‘On the Meaning and Promise of European Society’. It attempts to outline what an account of European society might look like if it were formulated from a more straightforward Hegelian perspective.

This article offers a critical literature review on the debate on constitutional identity, combining a synthesis of existing literature with a critical reframing of the concept’s theoretical and methodological foundations. While constitutional identity has become increasingly prominent in legal and political debates – particularly within the European Union – its meanings and functions remain contested. The article develops a typology of approaches to constitutional identity, distinguishing two main strands. First, it examines constitutional identity as a legal doctrinal notion. In this sense, identity can function either as a static concept – anchored in an unchanging normative core that limits political or legal interference – or as a dynamic concept, shaped through interactions between domestic constitutional orders and external legal ideas and practices. Second, the article turns to the descriptive use of constitutional identity, understood as a way to explain how a political community understands itself through its constitution. This part surveys key philosophical debates, including how constitutional identity negotiates sameness and difference, how it evolves over time, how it relates to competing conceptions of the constitutional subject, and how it is constructed through narrative, symbolism, and social practice. The article concludes by arguing that if constitutional identity is not a fixed essence but a dialogical and constructed assemblage of identities, then its study must go beyond the legal domain. It calls for a deepening of the interdisciplinary research agenda that includes insights from philosophy, sociology, discourse theory, and literary studies.

This paper explores the role of identity in constitutional law, moving beyond the dominant concept of constitutional identity. While many European constitutional texts reference various forms of identity – such as national, religious, or cultural – constitutional identity has been disproportionately emphasised in academic discourse. Through an empirical analysis of constitutional provisions and court rulings across 47 European states, this study demonstrates that identity plays a broader and more nuanced role in constitutional law than previously recognised. The paper categorises four types of relationships between identity and constitutional norms: identity as a right to protection, a basis for additional rights, a principle guiding constitutional interpretation, and an identity of the constitution itself. It highlights how constitutional courts interpret and balance competing identities, influencing the application of fundamental rights and constitutional principles. By highlighting examples that represent different models of identity systems, the paper reveals the necessity of giving scientific attention to the relationships between identities. Indeed, identities can undermine liberal constitutional values by privileging certain collective identities over individual identities and individual rights. Ultimately, the study argues that focusing solely on constitutional identity as an analytical concept to designate everything even remotely related to identity in constitutional law obscures the broader dynamics of identity within constitutional systems. It calls for a strict conceptual redefinition of constitutional identity in order to better understand how identity, in all its potential forms, continuously reshapes constitutional law and influences the evolution of democratic and human rights protections in European states.

The notion of constitutional identity rests on a seemingly inevitable tension: it is seen both as a source of inclusive social cohesion and as a potentially exclusionary concept invoked to justify populist claims and divergent interpretations of the rule of law and human rights. This has led legal scholars to redirect the understanding of constitutional identity towards an exclusively legal and functional definition in line with the formulation of Article 4 (2) TEU, which protects the ‘national identities’ of the European Member States: identity is assured so far as it is inherent to the ‘fundamental structures, political and constitutional’ of the Member States. This contribution criticises this approach, because it ignores the dynamic nature of a community and its attachment to its ethnocultural affinities, possibly undermining the viability of an inclusive polity. This is a concern, especially for multinational communities like the European Union. It then proposes an alternative conception of constitutional identity as narrative identity, in which preconstitutional identity emerges as the ghost in the shell of constitutional identity. A narrative conception of constitutional identity bridges the civic/ethnic divide by giving ethnocultural elements a place through narrative integration of preconstitutional identities but avoids an illiberal logic by putting them forward according to a retrospective logic as projections rather than as a robust core. Starting from that narrative conception, the relationship between preconstitutional and constitutional identity is further clarified by investigating their interplay across six binaries that often recur in the debate: continuity/change, sameness/difference, unity/plurality, sameness/difference, fact/fiction, affect/ratio.

The concept of constitutional identity has recently been invoked to impose limits on fundamental rights. In this article, I explore the relation between constitutional identity and fundamental rights and argue that constitutional identity – when properly understood – does not stand in tension but rather presupposes respect for fundamental rights. In the first part of the article, I develop a conception of constitutional identity as a set of normative commitments of a community that reflects its shared experience of establishing, and being subject to, a constitutional form of authority. In the second part, I argue that, while different constitutional identities can be idiosyncratic, they must incorporate respect for fundamental rights if their claim to reflect such common experience is to be credible. The upshot of the argument is that fundamental rights should not be understood as external constraints that limit the scope of constitutional identity, but as internal requirements inherent to the concept of constitutional identity. Although this understanding does not eliminate the difficulties which arise from different interpretations of fundamental rights, it does allow for a more productive engagement with constitutional identity claims, and for analysing them in light of fundamental rights standards they must already accept.

This article addresses questions about the identity of the subject of constitutional law from a historical-sociological perspective. It aims to reconstruct, beneath the surface of constitutional texts, the actual material subjects that commonly give rise to constitutions. To do this, it isolates the constituent conjunctures in which constitutions have typically been written, and it describes the social pressures that obliged members of different societies to articulate their subjectivities in constitutional fashion. It uses this reconstruction to suggest a new framework for approaching questions of constitutional subjectivity and legitimacy, as, contrary to more deliberative methods, it explains how experiences of military violence usually shaped the emergence of constitutional subjects. On this basis, it argues that constitutions typically acquired stable legitimating force, not by enacting the will of identifiable constitutional subjects, but by displacing such subjects into a manageable form, separate from their military emphases. It cautions against idealist theories of constitutional subjectivity, arguing that most constitutions create legitimacy for government specifically as they promote societal integration in procedures that are not defined by the subjects to which they attribute their authorship. It concludes by addressing some current examples of constitutional crisis, considering how these have been shaping by literalist understandings of constitutional subjectivity.

This article brings to the debate on constitutional identity a category borrowed by feminist thought: patriarchy. Generally considered as a pre-existing identity, flushed out by a modern/progressive constitutional identity, this paper claims that patriarchy can be indirectly perpetuated by certain constitutional provisions if not differently interpreted. By focusing on the issue of the exclusion of women from the priesthood in some majoritarian religions spread in Europe, the paper observes that an effective impossibility of challenging this exclusion in front of a judge, due to the operation of the constitutional principle of religious freedom, creates a growing conflict with another constitutional principle: that of gender equality. The paper notes that this inner conflict between two core constitutional principles, both crucial to the Western constitutional identity, is overlooked by constitutional research and invites constitutionalists to self-reflect on the historical limits of the constitutions that were created by men, in states that often coalesced with religious institutions to assert patriarchy. The paper claims that the constitutional indifference toward the religious gap is no longer constitutionally sustainable in a context in which the EU says that there is no democracy without gender equality. The principle of religious freedom needs to be re-interpreted to readdress a historical injustice suffered by women in the long patriarchal process that excluded them from the sacred. Without imposing upon religion institutions by dictating their faith, the paper suggests some practical measures that can remedy the patriarchal harms suffered by women after they lost access to the altar.

This paper examines some institutions of French public law and their transformations induced by European integration. It shows how institutions rooted in a specific political culture that long aimed at ensuring political liberty through the active role of la loi have been challenged by other institutions designed in the first place to protect civil liberties. It argues that the loi-based republican institutions of public law, that were inherited from the French Revolution and 18th century political thinkers, such as Montesquieu and above all Rousseau, have been significantly reshaped. That did not happen through politics, nor through another ‘French-style’ revolution. Ironically enough, it happened more modestly through law, within the meaning of le droit (and courts) as opposed to la loi (and the legislator), that is through those very means of political change that Republican France had consistently rejected ever since the Revolution. The French example showcases how paradigmatic political changes, from messianic republicanism to global constitutionalism, may thus occur, without a revolution, through the smooth medium of (European) law.