the ordo in its economic policy. To put this in a constitutionally positive way: it leaves the ordering of the economy to the democratically certified legislator. But, once again, the question arose how politics is to be legitimised if it outgrows this framework without being able to find a basis in international law? Ipsen's ingenious answer: Europe should be understood as institutionalising technocratic, functionalist rationality as the basis of and time, to be an adequate cause for what integration policy was actually doing. However, this ceased to be the case when the by now legendary programme to completethe internal market by 1992 was implemented. Europe then witnessed its own re-regulation'. 9 It started to complement its market build ing efforts with new regulatory strategies that, accord ing to Giandomenico Majone, would lead to the transformation of the European Community into a regulatory state”2 From such perspectives, private law proper'continues to be marginal. Both Europe lawyers and private lawyers shared this view the former were participating in renewing the whole regulatory framework for Europe's economy, the latter- most insistently the German academic community -complained about distortions of private law by European statutes but also emphasised that the core areas of private law continued to be in national hands the logic of integration policy and the logic of the development of private law were, seemingly operating autonomously. 21 1.3 Europe as a Sozialstaat(welfare state)and codifier of private law? Hard Code Now! This title sounded a bit like a battle cry and was meant to. Ugo Mattei who inscribed it on his banners, is more conciliatory and circumspect in reality than the slogan he chose is. A European civil code ought to lay down binding provisions, but be content with a minimal programme and be process orientated. Only in this way could it fit the social fabric of European capitalism. Would this, then, mean a code with deep enough foundations and high enough vaulting to include these social matters in its conceptual Germany, but his critique of the formalism of the German code still seems to be allve o edifice' to a sort of otto von Gierke redivivus? 23 Otto von gierke may be forgotten outsid topical 24 Tubingen: Mohr/Siebeck 1999, 5 ff.; cf earlier id, Zwischen den Muhlsteinen Eine Privatrechtsgeschichte der Weimarer Republik, Tubingen: Mohr/Siebeck 1988 See his regulating Europe: Problems and Prospects, Jahrbuchzur Staats-und Venwaltungswissenschaft3(1989),159 ff.; id(ed ) Deregulation or Re-Regulation? Regulatory Reform in urope and the United States, London: Routledge 1990, where he developed the corresponding legitim ising formula For an interim balance, see G. Majone, Regulating Europe, London: Routledge 1996.Since then, the conceptualedifice has been steadily refined, for example, in id, Non-majoritarian Institutions and the Limits of Democratic Govemance: A Political Transaction-Cost Approach, ournal of Institutional and Theoretical Economics 157(2001), 57 ff. For more details, see Ch Joerges and G. Bruggemeier, Europa isierung des vertrags und Haftungsrechts(note 2 supra); Ch Joerges, The Impact of European Integration on Private Law(note 2 supra) U Mattei, Hard Code Nowl, Global Jurist Frontiers 2(1)(2002), Article 1 O. v. Gierke, Die soziale aufgabe des Privatrechts, Berlin 1889, 17 Cf Ch. Schmid, On the Legitimacy of a European Civil Code, Maastricht ournalofEuropean and Comparative La 8(2001), 277.the ordo in its economic policy. To put this in a constitutionally positive way: it leaves the ordering of the economy to the democratically certified legislator. But, once again, the question arose how politics is to be legitimised if it outgrows this framework without being able to find a basis in international law? Ipsen’s ingenious answer: Europe should be understood as institutionalising technocratic, functionalist rationality as the basis of and contents of its law. And this type of output legitimacy seemed, for a considerable period of time, to be an adequate cause for what integration policy was actually doing. However, this ceased to be the case when the by now legendary programme to ‘complete’ the internal market by 1992 was implemented. Europe then witnessed its own ‘re-regulation’.19 It started to complement its market building efforts with new regulatory strategies that, according to Giandomenico Majone, would lead to the transformation of the European Community into a ‘regulatory state’.20 From such perspectives, ‘private law proper’ continues to be marginal. Both European lawyers and private lawyers shared this view: the former were participating in renewing the whole regulatory framework for Europe’s economy; the latter - most insistently the German academic community - complained about distortions of private law by European statutes but also emphasised that the core areas of private law continued to be in national hands: the logic of integration policy and the logic of the development of private law were, seemingly, operating autonomously.21 I.3 Europe as a Sozialstaat (welfare state) and codifier of private law? ‘Hard Code Now!’ This title sounded a bit like a battle cry and was meant to. Ugo Mattei, who inscribed it on his banners,22 is more conciliatory and circumspect in reality than the slogan he chose is. A European civil code ought to lay down binding provisions, but be content with a minimal programme and be process orientated. Only in this way could it fit the ‘social fabric of European capitalism’. Would this, then, mean a code ‘with deep enough foundations and high enough vaulting’ to include these social matters ‘in its conceptual edifice’ to a sort of Otto von Gierke redivivus? 23 Otto von Gierke may be forgotten outside Germany, but his critique of the formalism of the German code still seems to be alive and topical.24 Tübingen: Mohr/Siebeck 1999, 5 ff.; cf. earlier id., Zwischen den Mühlsteinen. Eine Privatrechtsgeschichte der Weimarer Republik, Tübingen: Mohr/Siebeck 1988. 19 See his Regulating Europe: Problems and Prospects, Jahrbuch zur Staats- und Verwaltungswissenschaft 3 (1989), 159 ff.; id. (ed.), Deregulation or Re-Regulation? Regulatory Reform in Europe and the United States, London: Routledge 1990, where he developed the corresponding legitimising formula. 20 For an interim balance, see G. Majone, Regulating Europe, London: Routledge 1996. Since then, the conceptual edifice has been steadily refined, for example, in id., Non-majoritarian Institutions and the Limits of Democratic Governance: A Political Transaction-Cost Approach, Journal of Institutional and Theoretical Economics 157 (2001), 57 ff. 21 For more details, see Ch. Joerges and G. Brüggemeier, Europäisierung des Vertrags und Haftungsrechts (note 2 supra); Ch. Joerges, The Impact of European Integration on Private Law (note 2 supra). 22 U. Mattei, Hard Code Now!, Global Jurist Frontiers 2(1) (2002), Article 1. 23 O. v. Gierke, Die soziale Aufgabe des Privatrechts, Berlin 1889, 17. 24 Cf. Ch. Schmid, On the Legitimacy of a European Civil Code, Maastricht Journal of European and Comparative Law 8 (2001), 277 ff