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In July 2025, the Inter-American Court of Human Rights (IACtHR) issued Advisory Opinion 32/25 on the Climate Emergency and Human Rights, responding to a request submitted by Chile and Colombia in January 2023. The Opinion did what many had anticipated but few expected to see so fully realized: it recognized the right to a healthy climate as a standalone human right, declared a jus cogens norm prohibiting irreversible environmental harm, and affirmed the legal personhood of nature. These are not incremental developments. They are structural shifts in international environmental law, and they did not appear from nowhere. They are the culmination of more than two decades of jurisprudential construction — a story that begins, quietly, with an Indigenous community in Nicaragua in 2001.

This post traces that arc: from the earliest seeds of environmental protection through rights to life and property, through the transformative pivot of nature rights, through the consolidation of contentious jurisdiction in Lhaka Honhat v. Argentina and La Oroya v. Peru, to the doctrinal summit of AO 32/25. It also examines what comes next — including the petitions still pending before the Inter-American Commission on Human Rights (IACHR or Commission), as will be explained below, and the September 2025 filing by several youth plaintiffs against the United States in Juliana Youth v. United States, which tests whether the Commission is finally ready to hold a major emitter to account.

Indirect to Autonomous: The Long Construction of the Right to a Healthy Environment

The IACtHR did not arrive at environmental rights fully formed. Its earliest environmental jurisprudence was indirect and instrumental: the environment mattered because environmental harm threatened other, more established rights.

In Mayagna (Sumo) Awas Tingni v. Nicaragua (2001), the Court recognized, through a joint separate opinion of three judges, that the habitat of an Indigenous community was integral to their cultural identity and communal life — a dimension of the right to property under Article 21 of the American Convention on Human Rights (ACHR). Four years later, in Yakye Axa Indigenous Community v. Paraguay (2005), the Court held that the denial of access to ancestral lands constituted a violation of the right to a dignified life under Article 4. Environmental degradation was actionable, but only because it threatened human beings whose other rights the Court already recognized.

This indirect approach was not a weakness of vision so much as a constraint of jurisdiction. The ACHR does not mention the right to a healthy environment. That right appears in Article 11 of the Additional Protocol (the San Salvador Protocol), but violations of that article are not subject to individual petition before the Court. The Court worked within those constraints — until it decided it did not have to.

The turning point was Advisory Opinion 23/17, issued in November 2017 in response to a request by Colombia concerning environmental obligations in the context of large-scale infrastructure projects in the Caribbean Sea. The Court used the occasion to establish three things that would reshape the landscape of international environmental law.

First, it recognized the right to a healthy environment as an autonomous right under Article 26 of the ACHR — directly justiciable, with both individual and collective dimensions, extending to present and future generations. Second, it became the first international human rights tribunal to recognize an extraterritorial jurisdictional link based not on physical control over persons or territory, but on control over domestic activities with transboundary effects — opening the door to “diagonal” climate claims, where individuals in one state hold another accountable for harms arising from activities within that state’s territory (see, i.e., De Bellis). Third, it elaborated a duty of due diligence with real content: states must regulate, supervise, and monitor activities capable of causing significant transboundary harm; apply the precautionary principle where serious or irreversible damage is at stake; cooperate with and inform other states; and guarantee access to information, public participation, and justice in environmental decision-making.

From Advisory to Binding: Due Diligence in Contentious Cases

Advisory opinions carry authority, but not the binding force of judgments. The question after 2017 was how quickly the Court would translate its advisory doctrine into contentious jurisdiction. The answer came faster than expected.

In Lhaka Honhat Association v. Argentina (2020), the Court recognized, for the first time in a contentious case, the right to a healthy environment as an autonomous and directly enforceable right under Article 26. The judgment also confirmed that the duty of due diligence requires ex ante measures — states cannot wait for harm to materialize. They must monitor, regulate, and supervise activities by private entities as well as public authorities, and failure to do so constitutes a violation of the Convention regardless of whether the ultimate harm is caused by non-state actors.

Three years later, Residents of La Oroya v. Peru (2023) took the doctrine further in two important directions. First, it extended the autonomous right to a healthy environment beyond Indigenous populations to the general public — the residents of La Oroya had suffered severe air and water contamination from a century-old metallurgical complex operated by both state and private foreign investors. The Court held Peru responsible for failing to regulate those activities adequately, drawing explicitly on the UN Guiding Principles on Business and Human Rights and holding that due diligence obligations apply equally to public and private enterprises.

Second, and perhaps more consequentially for what would come in AO 32/25, the Court adopted an explicitly ecocentric framing. The right to a healthy environment, it held, protects components of the environment — forests, rivers, seas — as legal interests in themselves, independent of any demonstrated risk to individual human beings. States are obligated to protect nature not only for its instrumental value to humans but for its intrinsic significance. This was not yet a formal recognition of rights of nature, but it was the doctrinal foundation on which that recognition would be built.

The procedural dimensions of La Oroya also matter for climate litigation. The Court found Peru liable for withholding health risk information from affected residents and for failing to ensure meaningful participation in environmental decision-making — violations grounded in Articles 13 and 23 of the ACHR. In a climate context, this reasoning obligates states not only to reduce emissions but to disclose the nature and pace of climate-related risks and to enable affected communities to shape both mitigation and adaptation policy.

The Commission’s Role: Petitions, Resolutions, and the Paradigm Shift

Before turning to AO 32/25, it is worth tracing the parallel evolution of the IACHR, whose trajectory mirrors the Court’s but begins with a more cautious posture.

The Commission’s first encounter with a climate petition came in 2005, when the Inuit Circumpolar Conference filed a complaint against the United States alleging that US greenhouse gas emissions violated the human rights of Inuit peoples in the Arctic. The Commission rejected the petition, finding insufficient evidence of a direct causal link between US emissions and specific rights violations. The decision was widely criticized but reflected real evidentiary limits that climate attribution science had not yet overcome.

The Arctic Athabaskan Council filed a comparable petition against Canada in 2013, focused on black carbon emissions and their effects on Athabaskan peoples’ ability to exercise cultural rights on ancestral lands. That petition remains pending — and the legal landscape it faces today, after AO 23/17, Lhaka Honhat, La Oroya, and AO 32/25 bears almost no resemblance to the one that confronted the Inuit in 2006: in the intervening years, the Court has recognized the right to a healthy environment and significantly strengthened the protection of human rights in the context of environmental degradation and climate change.

The Commission’s posture shifted formally with Resolution 3/21 on the Climate Emergency, adopted jointly with the Special Rapporteur on Economic, Social, Cultural and Environmental Rights (REDESCA) in 2021. The Resolution is significant because it systematizes, for the first time in an IACHR instrument, the positive obligations of states in the context of climate change. It specifies that States must adopt and implement mitigation targets consistent with the Paris Agreement, assess cumulative GHG emissions in environmental impact assessments, implement adaptation measures, and remedy resulting damages — all subject to the due diligence principle derived from the Court’s evolving jurisprudence.

A third petition, filed in 2021 by Haitian children in Cité Soleil, alleges violations of the rights of the child, the right to dignity, the right to a healthy environment, and the right to judicial protection, arising from toxic waste disposal whose harms are aggravated by climate change. It is the first climate case filed after the Court’s green jurisprudence had fully matured, and it draws on children’s particular vulnerability — a framing that has proven effective in climate litigation globally.

AO 32/25: Three Doctrinal Breakthroughs

Advisory Opinion 32/25 is the culmination of this trajectory, and its three central innovations deserve to be understood in that context rather than in isolation.

The first is the articulation of a jus cogens norm prohibiting irreversible environmental harm. By elevating the prohibition to the highest tier of international law — one from which no derogation is permitted — the Court signals that catastrophic, irreversible harm to the environment is not a policy choice subject to balancing against economic interests, but a categorical legal prohibition. No international tribunal had previously made this claim. The implications for climate litigation are significant: arguments framed around the risk of irreversible warming could now invoke not just treaty obligations but peremptory norms.

The second is the recognition of nature’s legal personhood. Building directly on the ecocentric reasoning of La Oroya, the Court formalized what that judgment had implied: nature is not merely a resource that humans have an interest in protecting but a legal subject capable of bearing rights. This opens the possibility of litigation brought on behalf of ecosystems — rivers, forests, glaciers — as rights-holders in their own right, not merely as conditions for the enjoyment of human rights.

The third, and arguably most immediately actionable, is the recognition of the right to a healthy climate as a standalone human right derived from Article 26 of the ACHR. The Court characterized it as both individually justiciable and collectively held — capturing the intergenerational and interspecies dimensions that make climate change distinctive as a legal problem. And it imposed concrete state obligations: ambitious, binding, and progressively scaled mitigation targets calibrated to the 1.5°C global temperature goal.

The Opinion also elaborated the three procedural pillars associated with the Escazú Agreement — access to information, public participation, and access to justice — and addressed the disproportionate impact of climate change on structurally vulnerable populations, including children, Indigenous peoples, Afro-descendant communities, and campesino and fishing communities.

Inter-Americanization in Practice and What Comes Next

The significance of this jurisprudence extends well beyond the formal jurisdiction of the Court. The process of “Inter-Americanization” — the dynamic exchange between regional standards and domestic legal systems — means that these doctrines travel.

Brazil’s Supreme Federal Court demonstrated this in its 2022 Amazon Fund decision, explicitly citing Lhaka Honhat to ground the principle of prevention as customary international law and holding the federal government’s dismantling of Amazon Fund governance structures unconstitutional. Panama’s Supreme Court, in invalidating a copper mining concession in November 2023, relied directly on AO 23/17 and IACHR Resolution 3/21 to find that an outdated environmental impact assessment and the exclusion of affected communities from decision-making violated both constitutional and international human rights obligations.

The most consequential test of this trajectory may come from the petition filed on September 23, 2025, before the IACHR by fifteen former plaintiffs from Juliana v. United States, together with Our Children’s Trust and Dignity Rights Advocates. The petition argues that over five decades of US fossil fuel policies, pursued with knowledge of their harmful consequences, violate the petitioners’ rights under the American Declaration on the Rights and Duties of Man, including the rights to life, health, security, family, cultural benefits, and property. It also argues that the US Department of Justice’s sustained efforts to block the Juliana litigation from reaching trial — upheld by federal appellate courts — constitute a denial of access to justice and an effective remedy. Expressly invoking AO 32/25 and the International Court of Justice’s climate advisory opinion, the petition applies those rulings directly to the circumstances of one of the most prominent climate cases of the last decade.

Whether the Commission will receive the petition, and how it will engage with the question of causation that defeated the Inuit in 2006, will be a crucial test of how far the system has actually traveled. The science of climate attribution has advanced enormously since then; the jurisprudence has advanced even further.

Conclusion

The IACtHR did not set out to transform international environmental law. It responded, case by case, to the specific legal questions before it, building a body of doctrine through the patient accumulation of precedent. What it has built over twenty-five years is nevertheless remarkable: an autonomous right to a healthy environment, enforceable against both public and private actors; a duty of due diligence calibrated to the scale of foreseeable harm; extraterritorial jurisdiction grounded in effective control over damaging activities; and now, with AO 32/25, a jus cogens prohibition on irreversible environmental harm, the legal personhood of nature, and a standalone right to a safe climate.

The significance of this jurisprudence extends beyond the Inter-American system. Regional human rights courts increasingly occupy a central role in the development of climate-related obligations. The European Court of Human Rights, through cases such as Verein KlimaSeniorinnen Schweiz v. Switzerland, has recognized positive state duties to protect individuals from climate harms and has begun to articulate procedural and institutional requirements for climate governance. The African Court on Human and Peoples’ Rights is now considering its own advisory opinion on climate change and human rights, presenting an opportunity to develop climate jurisprudence grounded in the African Charter and the continent’s particular experiences of vulnerability, development, and environmental justice. Across these systems, courts are confronting common questions concerning causation, risk, intergenerational equity, scientific uncertainty, and the relationship between environmental degradation and fundamental rights.

The IACtHR has emerged as one of the most ambitious participants in this judicial dialogue. Its jurisprudence has often moved beyond the approaches adopted elsewhere, not only recognizing environmental rights as autonomous and justiciable, but increasingly treating climate change as a structural human rights challenge requiring legal responses commensurate with the scale of the threat. Whether other regional tribunals embrace similar doctrinal innovations remains uncertain. Yet the IACtHR’s influence is already evident in the growing cross-referencing among international tribunals, the increasing reliance on scientific consensus as a basis for legal obligation, and the broader shift toward understanding environmental protection as a prerequisite for the enjoyment of human rights.

The same dynamic is now unfolding at the universal level. The recent advisory opinions of the IACtHR, the International Tribunal for the Law of the Sea, and the International Court of Justice reflect a convergence around the proposition that climate change is not merely an environmental issue but a matter of legal obligation. Although each institution operates within a distinct mandate, together they contribute to an emerging body of principles concerning prevention, due diligence, cooperation, vulnerability, and the protection of future generations. The precise contours of these obligations remain contested, but the direction of travel is increasingly clear.

The petitions still moving through the Commission — Athabaskan, Cité Soleil, Juliana Youth — will determine whether these doctrinal achievements translate into accountability for specific states. That translation is never automatic. Advisory opinions establish frameworks; contentious proceedings test their practical consequences. Yet the legal infrastructure is now in place. The question is no longer whether climate change falls within the ambit of international human rights law. The question is whether the institutions charged with enforcing those rights are prepared to apply the principles they have articulated to the concrete realities of climate harm.

The post From Awas Tingni to Advisory Opinion 32/25 appeared first on Verfassungsblog.

Armin von Bogdandy discovered the concept of society in Article 2 of the EU Treaty, theorised it as European society and brought it to the forefront of European legal scholarship and practice.

The Member States ratified the term deliberately, as a political choice, in the Treaty of Lisbon, he argues. The term has the potential to overcome Europeans’ own lack of understanding of who they are, and to transform the heterogeneous European experiences into a familiar notion. European integration does not take place between antagonistic Member States but within a society and its institutions. At the same time, it overcomes the excesses of a democracy centred on the will of the people (‘will-of-the-people’ approach) in favour of a constitutionalism based on principles. Even though his concept of society is directed against the people as the subject of collective self-determination, this does not mean that society replaces that subject right away. Society is expressly not that, just as peoples and national political spaces are to continue to exist. Society as totality, for that is nothing less than what is meant, consists of Members States and EU organs, citizens and those living permanently in the EU, corporate entities and intermediaries. Nevertheless, society is said to have the potential ‘to shape’ the established forms of membership in a political community. No doubt, those exclusionary institutions in the medium term shall be transcended by the new status of ‘society’.

It is very refreshing that von Bogdandy makes no secret of his creative aspirations as a European legal scholar and intellectual. As a social structure, he suggests, European society is the place where law and lawyers can bring about social change. The concept, the idea developed by Armin von Bogdandy and his circle around the Max Planck Institute in Heidelberg, is intended to change reality. It is about Heidelberg’s Future Union.

Legal Creativity as Political Agency

The aim is to provide the EU institutions, and above all the European Court of Justice, with a method of interpretation that allows for the evolution of EU law in the interests of advancing integration and of eventually saving Europe. The context for this approach is the conviction that in the EU-27 – foreseeable to be the EU-30+, starting soon with Ukraine and Moldova – with increasingly heterogeneous Member States, formal treaty amendments will no longer be possible. And even if they were to succeed, the compromise would be deeply ingrained in primary law. What is meant to be necessary will likely be missing.

Lawyers step in and become co-creators of Union law through interpretation. They are legitimised by what von Bogdandy previously called the evaluative overall assessment (‘Einschätzungsverbund’, see here). This is not an autonomous act of cognition by a single institution such as the European Council. Rather, the interpretation is based on a process of collective interpretation and evaluation by the relative majority in Member States and EU institutions, academia, and the public. In that process Georg Simmel’s conflict theory plays a role; the German sociologist regards conflicts as a necessary and integral part of society from which fruitful social dynamics are nourished.

The guiding motifs are the Union’s values, the – mythical – twelve principles of Article 2 of the EU Treaty. These values shall be common to members of European society and shape Europeanness.

The Court as a Value-Constitutional Actor

The proposition of a European society stands or falls with the assumption that the Treaty of Lisbon has established a new framework. However, there are good reasons, particularly based on the history of Article 2 TEU and its structure, to take the exact opposite view. The article is deliberately divided into two sentences, and the characteristics of the second sentence are not values. Article 3(1) TEU, which defines the aim of the Union, clearly identifies the peoples of the Member States as the addressees of the common good. The principle of conferral (Art. 4 TEU) as well as its implementation rules (Art. 5 TEU) are missing from the core of Heidelberg’s envisaged Constitution.

Armin von Bogdandy’s thesis is somehow axiomatic but can claim – meanwhile – substantial ground in EU practice. In 2022, the Court adopted the concept of European society in its RT France case. A year ago, the Court affirmed this stance (T-307/22 – A2B). Members of the ECJ and further EU organs have responded positively to the idea in their opinions and public statements – for about three, four years or so, no one involved in European law has been able to escape Heidelberg’s European Society.

Now even the European Court of Justice, indeed its full bench, comprising all its judges, has taken up this idea. In its long-awaited judgement in the LGBTQI-case against Hungary (Case C-769/22), the Court in April 2026 expressly invokes the ‘European society’. It did not, however, adopt the opinion of its Advocate General who had argued that Article 2 of the Treaty on European Union embodies the ideal of a “good society”. Nevertheless, the Court of Justice accepts the Commission’s pitch: it applies Article 2 TEU directly, even though this step would no longer have been necessary in order to reach the correct conclusion in those infringement proceedings, namely that the Hungarian laws were contrary to EU law. Hence, we can assume that the Court of Justice deliberately referred to the social group protected by EU law – which Hungarian law has deliberately excluded and marginalised – as an integral part of “Hungarian and European society” (para. 495).

The concept of society does indeed have potential for legal creativity, even speculation. From the outset, European legal scholarship has been familiar with normative drafts – von Bogdandy himself mentions the epochal but now exhausted project of ‘integration through law’. Of course, it is possible and legitimate to take up the interpretative potential of Union law and present an overall draft. In the European space, this would encourage and challenge others to respond and, when sufficiently incited, to present a counter-draft. As far as I can see, such an intellectual answer is still pending; it should, it must be conceived and formulated.

Critical Questions for a Constructivist Project

Until a theoretically inspired counter-draft is submitted, three critical questions must do the work:

First, with the European Society, Armin von Bogdandy is creating a new point of reference for ‘Europeans’, especially for lawyers, to continue the political unification project through the current crises and beyond. This creative and expansionary action is justified without or even against the will of the old subjects of legitimacy. Society and its ‘network of evaluative overall assessment’ want it that way – this is an avant-garde logic of action, with the protagonists, European lawyers, anticipating the future development of society. We could also say that the actors presume to have knowledge that they do not possess, because they declare their personal preferences to be those of the majority.

Although we know that such constructivism quite likely has unintended consequences, there is no space for irritation. Such a concept could be called not only elitist, which it undoubtedly is, but also anti-democratic.

Second, the central importance of values (Article 2 TEU) is confronted with the problem of their considerable abstractness and substantive ambiguity: What is freedom? How do we understand equality? What form does democracy take? Concretisation is necessary – we have been observing this process since 2018, when the Court of Justice outlined the value of the rule of law. But if (Union) law is no longer to stabilise politics alone but also to shape reality, then it needs special legitimacy. EU law that has been conceived by academics and established by courts, however, cannot rely on tried and tested procedures of ‘political decision-making’. It must justify itself on a case-by-case basis and hope for acceptance, which the Court seems determined to bring about by mobilising its entire bench of 27 judges acting unanimously.

This turns jurisprudence into a political act – and, it is to be feared, sooner or later it will also be perceived as such: as politics. This ‘doctrinal constructivism’ attributed to the ECJ – for me – seems to have a fair amount of ‘decisionist ethos’.

We can already see this happening in the EU today: criticism of the European Court of Justice has grown, and the Commission is making concessions to the new Polish government on matters of the rule of law that call into question the equality of Member States. If the Court of Justice and the EU institutions continue to face such criticism in the long term, might they lose their legitimacy in some sections of European society?

Third, with the European Society, a new legal term is being tailored. The term also draws a firm line between itself and established concepts such as ‘citizenry’, ‘nation’ or ‘people’. At the same time, however, von Bogdandy does not see the new term as naming a new subject of legitimacy. He proposes a new analytical framework, as he has done previously with the European Republic and the European legal space. But what happens to the other terms? They are not abandoned; they continue to exist in the applicable treaties and in the minds of politicians, scholars, and citizens.

He would probably answer that society will initially exist alongside the established terms, reshaping and gradually replacing them. However, we must recognise that the EU is not an island, it does not stand alone. The EU is a continental political space subject to international law. It also operates within the currents of Western theories of government that have developed over centuries. This cannot be resolved through rebranding and conceptualisation. In the end, we will be confronted with a European federation that will be endowed with all the insignia of state power, from which Armin von Bogdandy so diligently distances himself, constantly citing Carl Schmitt as a negative template.

Manifesto for a Progressive European Legal Scholarship

Armin von Bogdandy has presented a manifesto for a renewed progressive European legal scholarship. The manifesto appears at a time when European integration is questioned and under political pressure, when European legal scholarship is described as “bringing EU law back down to earth“. In this respect, he is Hegel’s disciple – a thesis provokes an antithesis. He is pursuing a noble cause. He wants to solve persistent integration problems, increase political dynamics and mitigate institutional threats to the ‘European way of life’. In line with his philosophical mentor, he is concerned with progressive liberalisation.

Women and men in organised Europe shall be freed from institutions such as citizenship, the nation and, of course, the people. They are to be downgraded, if not entirely dismantled, because of their exclusionary nature. A kind of new republican status is to take their place, which – being a constructed and untested concept – in turn envisages differentiations, or to be blunter: exclusions, between organised Europe and the outside world.

Moreover, this ‘scholactivism’ of good intentions, this ‘creative lawyering’, could have the exact opposite effect: institutions of democracy are becoming undifferentiated. The judiciary and the executive are pursuing an agenda based on highly abstract values that can no longer be controlled or even reversed by democratic practices such as elections. A new opaque majority of unelected kings and queens is becoming the reference point for political action. Trust in agreements is dwindling. Mistrust in the boundless logic of appointed bureaucrats and independent judges is growing. Law is becoming disconnected from social reality. Certainly, the fact that conflicts have been articulated in terms of European values underlines their social relevance. The Court’s last word, though, will not pacify severe value-based controversies by mere reference to primacy. The European Union could break apart as a result.

Organised Europe and its laws have already experienced revolutions – especially in the 1960s. The constitutional history of the EU teaches us that many things are possible. We should, therefore, take the idea of a European Society seriously. However, it will not succeed in the form of the present transformative manifesto. The constructivist blueprint for a European Society is not radical enough for that.

The post No Kings, No Queens in European Society appeared first on Verfassungsblog.

In its decision of 21 April 2026, the CJEU’s plenary qualified EU law as the “common legal order of a society in which pluralism prevails” (Case 769/22 Commission v Hungary, para 551). Leaving pluralism aside, this blogpost explores possible meanings of the “of” in the first part of that formula. I order them by increasing constitutional significance – and, probably, by increasing readerly disbelief. Take a break when your pulse starts racing.

My exploration presumes that the Court speaks of “European society” (Commission v Hungary, paras 494 and 554; see also sent. 63/2026 of the Italian Constitutional Court, point 8.2.5.). Moreover, it takes European society as a legitimate and meaningful concept (see here and here). Building on that, it sketches four ever more foundational understandings: European society as the social field of EU law; EU law as expressing deep structures of that society; European society as generating EU law; and European society as the source of EU law’s authority.

European Society as the Social Field of EU Law

In its first meaning, European society is the social field of EU law: the totality of social relationships it governs. This goes far beyond the formula familiar from the ECtHR’s ‘democratic society’. There, society functions as a normative standard for assessing restrictions of rights; here, it becomes the social referent of a legal order. This recasts EU law as the law of a transnational social reality.

To begin with, this is a claim about breadth. EU law was often understood as a merely functional project designed to build a market, bind Member States, and enable cooperation among public institutions. EU law can no longer be understood if reduced to that. It extends to a far broader web of social relationships: citizens, families, companies, workers, consumers, universities, judges, administrations, social groups, and political actors interact under rules, expectations, and procedures shaped by EU law. This reading conceptualizes that web as a society.

Yet, the point also has an ontological dimension. EU law does not merely extend to an already existing European social field; it has helped to produce one. European society, on this account, is the social space that has emerged from the accumulated effects of European integration. EU law has generated interdependence and expectations that did not previously exist. It plainly shapes a social reality far denser than ‘Western society’ or ‘global society’ have ever been. Over 70 years, European integration has produced a social reality of its own, conceptualized through the singular term society.

This reading builds on the ordinary meaning of society. Society denotes a web of human relations held together by a stabilizing framework – in the European case: EU law and institutions. Individuals who never meet may still be members of one society if their interdependence is mediated by such a framework. This reading does not dissolve national societies: The Court refers to Hungarian and European society (Commission v Hungary, para 554), as does the Italian Constitutional Court with European society and the Italian people (sent. 63/2026, point 8.2.5.). The point is that these national societies, after decades of their Europeanization in a common framework, are embedded in a common European one.

EU Law and the Deep Structures of European Society

The second reading builds on the first while bringing more heft: some parts of EU law articulate, shape, and protect structures foundational to European society, in the case at hand its values. Under this reading, both EU law and European society gain in social and normative relevance.

This meaning captures another important development in EU law. Modern continental legal thought puts great emphasis on constitutions and great codifications – lois, Gesetze, leggi. They express and frame a society’s deep structure. EU law has no such sources. Its foundations are set in treaties, its main instruments are regulations and directives. These are usually executive instruments which, under most constitutions, may not regulate essential matters. Accordingly, EU law appears thin: relevant for professionals but not for the texture of society.

The second understanding suggests that today, EU law’s societal significance goes beyond this. Indeed, the European legislator has started to identify regulations of deep social relevance as ‘Acts’ (Gesetze) (see, e.g. the DMA and the DSA). In the present case, EU values are playing that role. The Court links them to “the very identity of the Union” (Commission v Hungary, para 551). This ‘identity’ means that EU law prohibits insinuating that non-heterosexual persons constitute a “fundamental threat to Hungarian and European society” (Commission v Hungary, para 554). EU law does not just regulate some activities in European society; it codifies its foundational principles and draws red lines. The very purpose of the Court’s elevation of Article 2 TEU to a separate ground in infringement proceedings is to defend this foundation against ‘manifest and particularly serious breaches’. Such ‘law’ cannot be grasped as merely external regulation of society; rather, it claims to express its ethos. Hegel would qualify it as objective spirit.

This understanding is not undermined, but rather supported, by conflicts over the values of Article 2 TEU, as in the case at hand. The same point appears with even greater societal force in Europe’s response to Russia’s war against Ukraine. Many European leaders invoke these values as ‘our values’ to justify controversial decisions: confronting a nuclear power, spending enormous sums on Ukraine, and welcoming millions of refugees. European society is the collective implied in that ‘our’. EU law expresses deep structures of European society that are worth fighting for, literally. It is the law of European society in an emphatic sense.

European Society Generating EU Law

The third understanding deepens the link between EU law and European society by suggesting to considering EU law (including its values) as being generated by European society. The ‘of’ in the statement ‘EU law as the law of European society’ thus gains the dimension of a subjective genitive.

Nobody has ever seen European society enact legislation. Any EU legal act has been produced by public institutions under procedures at the EU and the national level, not by society as such. What the third reading suggests is to consider the many law-generating procedures as aspects of one overarching social process. No society generates law like a person writes a text, and yet such attribution is key to modern political and legal thought.

The third reading proposes picturing EU institutions not as tucked away in some modernistic buildings but as embedded in a social field conceptualized as European society. They appear as the sites at which wider social forces, conflicts, expectations, and forms of participation are translated into law. The political processes and legal procedures are activated, populated, informed, monitored, and contested by actors from many quarters: governments, members of parliaments, national administrations, courts, companies, trade unions, social groups, NGOs, experts, journalists, academics, and not least citizens. This also holds true for the CJEU. Its decisions emerge from preliminary references by national courts, arguments by litigants and governments, academic commentary, political contestation, and the anticipation of their subsequent reception throughout European society, including on Verfassungsblog.

To be sure, this reading does not suggest that all citizens participate equally; they do not. Precisely for that reason, European society serves not only as a basis for new reconstructions of EU law but also as a critical foil. If EU law is eventually generated by European society, then all shortcomings of EU law are indicative of shortcomings of European society.

Considering European society as generating EU law does not require conceiving it as an agent in itself. Collective singulars are often used in that way: a society (or a state, a nation, or a people) expresses its will, takes a decision, and makes a step. Anthropomorphism is widespread in modern thought, as are its critiques. The third reading takes European society as a reference for reconstructing European law-making processes but not as an entity, let alone as a subject with a will, wishes, fears, or as an agent in its own right.

Taken together, the first three meanings elaborate the mutual constitution of law and society, drawing on tested institutionalist, sociological, and philosophical insights. EU law structures European society; values both express and transform that society; European society receives, contests, and regenerates EU law.

European Society as EU Law’s Source of Authority

The fourth understanding tests how far the third can be pushed. If European society generates EU law, it might be considered a source – perhaps even the source – of EU law’s authority. This would cast European society in a role that ‘the people’ play in many national constitutions. Warning bells ring.

Indeed, this is not how EU law speaks. After decades of debate over a European demos, it is telling that the Treaties do not proclaim a European people, but continue to start with His Majesty the King of the Belgians. The Member States establish the authority of the Union by a common act as High Contracting Parties, Article 1(1) TEU. They ratify and amend the foundational layer of EU law under procedures that belong to international rather than constitutional law. However, the Treaties do not merely originate from interstate agreement. The authors of the Treaties also ‘founded’ them on European values that characterize European society and form its normative texture.

That foundational claim has a weak and a strong version. The weak version goes like this: If EU law is the legal order of European society, and if Article 2 values set enforceable red lines for that society, then European society is no longer merely EU law’s environment. It becomes a justificatory ground – or source – for EU law’s authority over Europeans. This may strengthen the case for EU primacy over national constitutional law.

The strong version goes further and looks for ultimate authority. European society could only provide that if the concept synthesized the two foundations of EU law – the common act of will and the common values – as somehow equivalent to an exercise of the citizens’ original power. That is a tall order, not least as European society includes not only EU citizens but also resident third country nationals. I do not yet see a path for that argument. Nevertheless, I see a point to continue looking for it.

The point is to provide EU law with an ultimate source of authority that fits its constitutional Gestalt. European society is attractive here because it is uniquely responsive to the situation of people living in the Union, citizens and resident third-country nationals alike. It names a totality that recognizes, and even values, plurality and conflict rather than homogeneity; institutional mediation rather than direct self-government; and a position somewhat below statehood, yet far beyond international organization.

Any attempt at such a synthesis will meet incredulity. In May 2026, it is hard to imagine the Court of Justice claiming to judge ‘in the name of European society’. And yet, in its judgment of 21 April 2026, the Court seems to come close to something it has never done before: giving voice to the deepest constitutional normativity of European society. The Court is not merely applying rules to a social field; it appears, at least for a moment, as an institutional voice of that society.

This may also explain why some authors have reacted so stridently to the Court’s society judgment. Perhaps anticipating such unease, the Court itself left open a less conflictual path. In paragraph 556, it avoided the genitive altogether, qualifying EU law more cautiously as “a common legal order in a society”.

“EU law as the law of European society” opens a new horizon. The four readings developed here suggest possible paths, not doctrinal truths. Some will dismiss them as academic science fiction. Yet only a few months ago, the very idea of European society as a legal concept seemed just that.

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