I welcome Jan Komárek’s project to engage in a history of “European Constitutional Imaginaries” as seen through EU law landmark theories and most prominent authors. Some malicious minds would think of it as yet another avatar of the “scholastic bias” that structurally incites us scholars to transform our professional anxieties (what is my/our scholarship worth for?) into full-fledged research question (do ideas matter?)… Others could see it as a vain exercise in nostalgia, as EU law researchers return to a golden age, that of the late 1980s, in which EU law was indeed able to frame professional identities and capture political imaginaries way beyond the academic circles. I would rather take it as part of the “critical turn” that has come along the sense of désoeuvrement so pervasive among EU lawyers ever since the constitutional project failed to gather popular support. A détour to the history of the discipline can indeed be a powerful methodological device to strengthen our reflexive gaze and, maybe, start again rolling up the immense boulder of theoretically connecting Europe, the European Union and the Law. I would argue however that the success of such endeavor is conditioned by our capacity to provide a renewed analytical framework able to compare past theoretical undertakings not only from an “internal” point of view (in terms of legal ideas) but also from an “external” point of view (in terms of social and political relevance) and -most importantly- account for the tensions and contradictions between the two. I take the very notions of “utopia”, “imaginaries” and “ideology” introduced by the project IMAGINE, that all refer to the capacity of legal ideas to capture political expectations and strategies, as strong incentives to move in that direction. In this paper, I suggest to examine theories of European law along two (partly conflicting) dimensions -their scientific robustness and their social relevance- and apply this simple conceptual toolbox to three historical constellations of European law theory.
You can download the working paper at the SSRN.