Christian Joerges passed away last July, aged 81. We have come to regard him as a ‘doyen’ of European Union law and of its economic law, in particular. As the thorough and informative interview, conducted by Agustín Menéndez and Harm Schepel and printed in this journal,Footnote ¹ demonstrates, however, understanding and theorising the significance of European Union law was only part of a broader scholarly perspective. It had solidified gradually when Joerges completed his doctoral dissertation in 1971.Footnote ² Even though his worldview had roots in progressive Roman Catholicism, the project is congenial to the type of scholarship pursued by social democrats in the interwar period. It is about the political nature of markets (‘markets as polities’ was the provocative title of one of his later projects)Footnote ³ and the task to identify legal structures that permit peaceful resolutions of conflicts among competing social values, chief among them equity and efficiency. Much to his credit, Joerges was undogmatic enough to draw on a variety of sources in political and economic theory. Any source, short of Marx, seemed to be welcomed by him. From the outset, Jürgen Habermas’s theory of the public sphere undoubtedly left an imprint on his intellectual outlook,Footnote ⁴ but likewise did Karl Polanyi’s Great Transformation,Footnote ⁵ and the ordo-liberals to whom he sustained an ambivalent relationFootnote ⁶ that I, for one, was never quite able to resolve.

Obviously, Joerges’s scholarship never fitted squarely in the mould of doctrinal lawyers. The institutions of the political economy and political science played a far too important role for it to pass as ‘solide Rechtsdogmatik’. Politically, his work was unmistakably committed to democracy and, subject to the condition of democratic legitimation, some form of socialism, broadly understood. At the same time, Joerges was liberal, but not so staunchly liberal that he could have joined forces with the likes of Ernst-Ulrich Petersmann.

The social and democratic core of Joerges’s jurisprudence merits emphasis, for it explains why he, who had begun as a scholar of private law and conflict of laws, developed an interest in European Union law. After the social democrats lost power in Germany in the early 1980s (‘die Wende’ – ‘the turn’), a group of progressive legal scholars, most of them based in Bremen, decided to take their agenda to the higher level. Europe was expected to be the panacea of social ills. Back then, this group of hopeful progressives could not have known that they would have to engage in an uphill battle and, at the end of the day, witness a demolition of social democracy that was only to be followed by the recrudescence of presumably ‘authoritarian’ movements. Joerges and his like-minded friends, however, remained in the trenches even after the defeat had already become ostensibly unavertable.Footnote ⁷

It is fascinating to see how Joerges’ basic social and democratic inclinations materialised in the projects that he pursued on European Union law.Footnote ⁸

First, there is the emphasis on conflict of laws and, hence, on the need to make politically significant choices within legally regulated structures. It did not happen by accident, then, that Joerges also developed an interest in critical legal studies, for ‘it is all politics’ was the contention of last resort coagulating a ‘movement’ whose participants, falsely perhaps, regarded themselves as leftists.Footnote ⁹ Choices are important in the context of conflicts of laws, which would also provide, Joerges claimed, the key to understanding the European constitution.Footnote ¹⁰ The idea still merits further elaboration, building on the foundations laid in some of his occasional pieces.

Second, as part of a highly fruitful co-operation with the gifted political scientist Jürgen Neyer, Joerges developed a perspective on the European Union that set sail under the somewhat perplexing banner of ‘deliberative supranationalism’.Footnote ¹¹ The idea is twofold. The fundamental freedoms are a means of representing the interests of outsiders in a judicial context. In the course of the application of the requisite proportionality test, they need to be considered equitably. It is already by this means that a transnational form of democratic representation becomes effective in Europe. Beyond the protection of rights, the regulatory process (‘positive integration’) of the internal market prepared in the comitology system did, upon closer inspection, not merely amount to concatenations of occasional bargains, but rather to the deliberative and sound exchange of arguments among a transnational expert group. Again, the interests of Europeans were hence taken to have a fair chance of being represented accurately.

Aside from a much-debated application of Habermasian ideas concerning deliberative democracy to the comitology system, the whole idea was based on reversing the somewhat tiresome charge of Europe’s democracy deficit.Footnote ¹² While, concededly, many things were left to be desired about democracy in the European Union, the Union could, nevertheless, be credited for attenuating a deficit of legitimacy that is inherent in bounded democracies due to their systematic failure to have all participate who are affected by their decisions. Foreigners are not given a voice. At least within the Union, it is by virtue of the representation of the interests of outsiders in judicial proceedings and political processes that the democratic legitimacy of national democracies becomes enhanced. The overall approach turned out to be quite fruitful, and was taken to the next level by Miguel Maduro, who was Joerges’s PhD student. He made it compatible with law and economics and comparative institutional analysis.Footnote ¹³

Along with the work of Joseph Weiler, whose oeuvre is perhaps more scintillating,Footnote ¹⁴ while decidedly not addressing questions of political economy, ‘deliberative supranationalism’ is one of the few grand theories of European Union law that were developed at the time when the Union was not only perceived as a major bulwark for the defence of ‘values’ against Eastern detractors.Footnote ¹⁵

Third, aside from a whole host of spin-off projects orbiting like satellites of the former, one lasting achievement that reveals Joerges’s progressive political sensibilities is the Darker Legacies project that ventured into the demoralising interwar period of European societies, thereby broadening the scope of coping with the past (Vergangenheitsbewältigung) beyond its traditional focus on Germany or Austria.Footnote ¹⁶ It resulted in an anthology that rightly contributed to the editors’ fame, not least owing to having received 27 reviews.Footnote ¹⁷ Joerges reportedly had to pursue this project, which seems now more topical than ever, in the face of quite some resistance from some of his peers who appear to have complained of having the German attitude of repentance imposed in their national traditions. But as the volume amply revealed, interwar (or even postwar) fascism amounted to a joint European burden that had to be addressed by working through memories and by sharing national histories with one another.

Many other projects would deserve mentioning here, for example, Joerges’s engagement with the White Paper on Governance,Footnote ¹⁸ his perambulations of the lure and dangers of ‘delegalization’,Footnote ¹⁹ his analysis of the fiscal and financial crisis management,Footnote ²⁰ his intermittent forays into political economy and his early contributions, written in German, on the theory of conflict of laws and the foundations of consumer protection legislation. Fortunately, a substantial collection of his writings is available in both German and English. The scope of his work, spanning private law, administrative law, and constitutional law is breathtaking. Joerges’s legacy is now accessibly preserved and available for study by future generations.Footnote ²¹

Equally breathtaking, in fact, and in no manner a minor part of his achievements, is what he accomplished in bringing people together and in lending them his support. Lest we forget, universities are in a peculiar way locations of the performing arts. Events are put on stages on which people appear just in order to appear before others. Research is a spectacle. Tedium can only be dissipated if debates and conferences are attended by people who know how to present themselves in everyday life. Joerges was not only among the very best actors, he was also a very capable producer and director. The conferences that he put together always offered occasions to get to know new, brilliant people. Joerges had a good eye for spotting fresh talent, and it was rewarding to gather with his most recently selected cast at workshops or conferences. Last but not least, it should be mentioned that he was a founding member of the European Law Journal, which was, at any rate in its original format, the intellectual predecessor of this journal.

Christian Joerges was a warm person, endowed with a good sense of humour, much wit, and with that sufficient portion of self-irony which allowed him to elude the lure of pompousness. Nevertheless, I sensed, sadly, that at least throughout his (long) tenure at the EUI, he felt underappreciated in the German speaking academic world. This underappreciation had its root, of course, in a dissatisfaction, which he also clearly articulated, with the intellectual format (Rechtsdogmatik) and past failures (Nazi law) of his native legal tradition. Even though I never encountered any rejection of his work or his person, the established scholars ‘at home’ may indeed have abstained from reciprocating his critical attitude towards their ways and lineage with lavish gestures of admiration. Hence, Joerges may have misunderstood that living with the sense of being branded as one of those notorious progressives from Bremen was indeed an adequate reward paid by the parochial establishment for his remarkable intellectual independence. Such independence is rare in German circles, and it is another, indeed, perhaps the key factor explaining why it must have been difficult for him to fit in at home.

Joerges was the first German law professor who did not create the impression in me that there was something wrong with me – something sure to disqualify me forever from being a member in truly good standing in the lawyers’ guild. I have never thanked him for that. Yet I still owe him an enormous debt of gratitude for many other things. He opened many doors for me. He let me in on the top level of European scholarship, even though I was coming from nowhere, that is, from the Grundlagenfach of an intellectually rather forsaken faculty. Joerges provided me, even though I have never been his disciple, with opportunities. Helping more junior people finding their paths amidst the trials and tribulations of academic life is not the least that an accomplished academic can do. I can imagine that for the same or similar reasons many others feel as grateful as I feel towards him and that they will also miss him, as I will, for as long as they live.