Expanding Europe’s conflicts-law constitution: against negative externalities of dominant function systems

Abstract Why should one expand Christian Joerges’s pioneering concept of ‘Europe’s conflicts-law constitution’? The European constitution should consistently incorporate the double plurality of Europe because, for centuries, Europe has been governed by two powerful pluralities that are orthogonal to each other, but at the same time closely interpenetrate each other. Europe’s material constitution is characterised not only by the conflicts between nation-state policies, but also by the deeper conflicts between different intrinsic normativities of societal institutions. The European conflicts-law constitution should therefore not only realise the transnationalisation of the ‘political’ constitutions of the nation states and their underlying conflicts, but also a ‘societal’ constitution that inscribes itself into the conflicts of previously unconstitutional worlds of meaning. On the basis of this extension, Joerges’s ideas can be made fruitful beyond the conflicts-law constitution that he confined to the EU‘s political system. If their extension to sectoral constitutions of Europe is taken seriously, the three strategies, which Joerges developed for conflicts between nation states, are also promising for conflicts triggered by the diversity of functional systems. In three case constellations, the article outlines how Joerges’ methods can be successfully applied in the most recent European sectoral constitution – in ‘Europe’s digital constitution’.