Anselm Küsters looks at European (and briefly also German) competition law from a legal history perspective.1 He combines novel methods of text mining with traditional legal history research. The author himself calls his approach digital conceptual history. He relates his work to the field of digital humanities which apply computing or digital technologies to the disciplines of the humanities such as law or history.2 The field has actually become quite well established by now with inter alia a number of dedicated journals.3 The same applies to the particular field of digital history within historical studies.4

By contrast, in the field of legal studies digital tools have been employed much less widely to date although that may be about to change.5 To the reviewer’s best knowledge no comparable study exists as of today. Existing studies on the influence of Ordoliberalism on European competition law employ traditional methods and cover shorter time periods. For example, David J. Gerber’s seminal work only covers the period until the 1990s while the study by Milène Wegmann covers an even shorter time period. The same applies to the volume edited by Kiran Klaus Patel and Heike Schweitzer.6

Küsters’ methods are mostly new to the subject matter whereas his findings are broadly in line with earlier studies. Which methods does he apply? To begin with, he regards Ordoliberalism not only as an academic school of thought7 but primarily as a “language community”. According to his digital conceptual history approach he first sets out to trace genuinely Ordoliberal words and concepts. These include Leistungswettbewerb (“competition on the merits”), vollständiger Wettbewerb (“complete competition”) and Wirtschaftsverfassung („economic constitution“). He then traces them in large text corpuses including more than 1.000 speeches by Competition Commissioners and officials of the Directorate-General for Competition (DG COMP) between 1995 and 2020 as well as more than 12.000 Commission decisions on competition law and all respective judgments by the European courts between 1961 and 2021. Evidently, Küsters could not have studied all these thousands of texts in depth as in traditional legal or historical research. Rather, he confines traditional “close reading” to selected texts. At the same time, he applies various text mining methods to the sets of documents. These methods of “distant reading”8 range from simple word counts to more sophisticated quantitative analysis such as structural topic modelling and sentiment analysis. Moreover, he also discusses shortcomings of these relatively new methods which is to be welcomed.

What about findings? First and foremost, Küsters confirms the great influence of Ordoliberalism on German and European competition law especially up to the 1990s. Later, Ordoliberal ideas lost ground vis-à-vis what the author refers to as neoliberalism and relates to the Chicago School and Post-Chicago School. The decline was, however, much more marked with respect to the Commission than with respect to the European Courts. Moreover, it was internal actors that actively pursued the various reforms towards a “more economic approach” (pp. 506 ff.).9 These included then Competition Commissioner Mario Monti, himself a former professor of economics, and the newly appointed Chief Competition Economist and his team of (mainly PhD) economists. These findings are broadly in line with earlier studies but Küsters can at least confirm and further specify them as regards timing and persons involved.

In fact, Küsters identifies important “transmitters” (my word) of Ordoliberal ideas into European competition law provisions and case-practice. It is worth enumerating the most important ones to give an idea of the breadth of Küsters’ study. Without claiming completeness these include the first Commissioner for Competition Hans von der Groeben, the Member of European Parliament and competition lawyer Arved Deringer, legal scholar Ernst-Joachim Mestmäcker, Commission official Ivo Schwartz, CJEU judges Jacques Rueff, Walter Strauss, Hans Kutscher and Ulrich Everling as well as “Frankfurter Allgemeine Zeitung” journalist Hans-Herbert Götz. Most but not all of them were German. Many had also studied at Freiburg university, usually considered the home of Ordoliberalism.

Taken together Anselm Küsters can be credited with furthering our understanding of the development of European competition law and policy and the forces that shaped it. He skillfully applies a multitude of research methods, both traditional and novel ones. That makes the book at hand voluminous but at the same time a very worthwhile reading.10 Interestingly, Küsters concludes with a brief speculation about a “Re-Ordoliberalisation of European competition law” at the time of finishing his study, i. e. in spring 2022 (pp. 637 ff.). Whether this will actually happen under the mandate of Teresa Ribera Rodríguez in the new Commission will be a subject of future legal history research.

Notes:
1 The book to be reviewed is the author’s PhD thesis compiled at the Max Planck Institute for Legal History and Legal Theory and Goethe University, both Frankfurt am Main, Germany.
2 See David M. Berry, The computational turn: Thinking about the digital humanities, in: Culture Machine 12 (2011), pp. 1–22.
3 These include the International Journal of Digital Humanities and the Zeitschrift für digitale Geisteswissenschaften.
4 See Christina Antenhofer et al. (eds.), Digital Humanities in der Geschichtswissenschaft, Wien 2024; Karoline Döring et al. (eds.), Digital history: Konzepte, Methoden und Kritiken Digitaler Geschichtswissenschaft, Oldenbourg 2022.
5 Christel A. Romein, State of the Field: Digital Legal History, Journal for Digital Legal History 3 (2024), https://doi.org/10.21825/dlh.91695 (06.12.2024).
6 David J. Gerber, Law and Competition in Twentieth Century Europe. Protecting Prometheus, Oxford 1998; Milène Wegmann, Der Einfluss des Neoliberalismus auf das Europäische Wettbewerbsrecht 1946-1965. Von der Wirtschaftswissenschaft zur Politik, Baden-Baden 2008; Kiran Klaus Patel / Heike Schweitzer (eds.), The Historical Foundations of EU Competition Law, Oxford 2013.
7 For a comprehensive treatment of the formative years see Raphaël Fèvre, A Political Economy of Power. Ordoliberalism in Context, 1932–1950, New York 2021.
8 The term „distant reading“ is usually ascribed to the Italian literary historian and theorist Franco Moretti. See id., Distant Reading, London 2013.
9 For a comprehensive treatment with regard to merger control see Arndt Christiansen, Der More Economic Approach in der EU-Fusionskontrolle. Darstellung, konzeptionelle Grundlagen und kritische Analyse, Frankfurt am Main 2010.
10 Anyone interested in the main findings only may turn to the author’s own open-access summary in the Erasmus Journal for Philosophy and Economics 15 (2022), pp. 189–194, https://www.ejpe.org/journal/article/view/688 (06.12.2024).