Reconnecting EU Legal Studies to European Societies
I should like to suggest that EU legal studies suffer from a disconnect with social reality. If we need a method, it is one that allows us to reconnect with European societies as a bustle of unsettled forms of life, from both an existential and social perspective. Departing from classic institutional and constitutional approaches to EU law, while endorsing the critical turn in the EU legal studies, I will argue in favour of a new “anti-transcendental” perspective.
No method
For a long time I would simply disregard discussions on method. I found myself implicitly endorsing Mauss’ rather blunt statement: “Who does not do science, does the history of it, discusses method or critiques its real impact.” I am not suggesting that I envisioned myself as a producer of scientific statements about law, as if I were able to cognize the “laws” of European law. Rather, I was engaged in a theoretical-practical endeavour that consisted in providing the set of concepts and techniques on which the whole European construction could be based, striving to dissect as well as perfect them – driven, as it were, by the notion that European law was an element, even if limited and constantly thwarted, of emancipation from closed national order and confined political and legal thinking. There was no time or space for a characterization of method. Moreover, early on, I assumed that if we were to be serious about this original task, we – academics of my generation – had to learn and speak the language of the treaties, and more specifically the language of the Court of Justice, just as did the previous generation, but this time in a way that would allow us to dig deep into this language in order to recast it in a more consistent fashion. EU law was “imagined” as this special language, reconciling abstract knowledge and institutional practice, having the capacity to embed the bustle of chaotic political, economic and social relations into simple legal formulas. This did not preclude us from importing other languages, including broad conceptions from philosophy, theories of justice and political theory. But it meant that method was to be understood as a kind of “bricolage”, relying on a heterogeneous repertoire of tools and concepts, developed as the result of all the occasions there have been to deal with the insurmountable contradictions European integration is based upon. My present interest in method arises out of a failure, following this path, in making sense of European integration not just as a grand political project but also as a genuine (largely damaged) “form of existence”.
A quasi-transcendental system
European integration was conceived as an order-building enterprise. Its purpose was to build a new socio-economic order based on rooted domestic orders with a view to deeply affecting their conditions of reproduction, opening them and making them compatible with each other. What we have come to know as “EU law” is the set of concepts, techniques and actors that would make this possible. This practically meant erecting a viewpoint above the fray of inter-states relationships, distant from the chaotic terrain of power relationships, social conflicts and cultural struggles while shaping them. From its inception, EU law was concerned with setting up a quasi-transcendental system, a sort of duplication of the “real” process of integration – another version of it that would make it real and sustainable. The law of integration, as described by Pescatore, is not rooted in a grounded experience of inter-states relations; it is “a world in itself”. This world consists of conceptual building blocks, i.e. systems of meaning freed from any domestic or international legal anchors and, instead, referred to “a system, that is to say a structured, organised, finalised whole.” Two basic operations are typical of it. On the one hand, nothing is alien to this world: any kind of issue may fall within the scope of EU law and come into its terms. On the other hand, all issues are potentially divisible and commensurable in EU law terms.
A “reality deficit”
Our scholarly work was devoted to explore this system, its underpinning assumptions, inherent inconsistencies and inner forms of transformation. What came out of this investigation is a sort of abstract world based on three main figures: a rights-based and self-organised individual, a value-based and ordered European society and a rule-based multilateral world. It should be clear that these figures have helped improve Europeans’ living conditions as well as their mutual ties and, even further, offer them a promise of individual emancipation and social harmony. However, the subsequent crises of Europe and the catastrophes we are experiencing, whether imminent or underway (climate change, pandemic, war), have revealed to us the limits of this construction. They have made clear that it is a reduction of the real world. To be sure, any legal construction is reductionist in nature. It brings thick social and political issues back to thin legal questions. However, what is significant about EU law is that its basic concepts and techniques are designed so as to occlude an essential part of reality. Rights say very little about the real modes of existence and coexistence of Europeans, and they obscure their struggles to form what Guattari once called “existential territories”. Values operate as a refuge against the crises of the everyday that manifest in a number of ways in today’s Europe, from conflict to protest, from disillusion to resentment. Ruling the world is a way of distancing ourselves from our critical dependencies and essential vulnerability, and from the tears and injustices of the past. No doubt this system is largely responsible for the sense of unsettledness widely shared across social groups and individuals in today’s Europe.
Matters of concern
What we need is a clear acknowledgment of this disconnect. We need a method that allows us to reconnect with European societies. The problem with EU legal studies is not so much that we have too much law and too little reality; it is that we have too little “real” matters of concerns in our approach to law. By matters of concern, I mean salient societal issues that result from basic conflicts affecting Europe’s interdependent societies. They concern conflicts about the material production of European societies (issues such as reproduction of life on earth, the socio-economic conditions of production, the maintenance of critical infrastructures) as well as conflicts about the self-understanding of society as a whole (issues such as the respective role of labour and care, the place of minority groups, the coexistence of citizens and aliens). How to recapture these matters in our field? This presupposes a clearer view of Europe’s social setting. We are still lacking a refined comparative analysis of European societies. One thing is clear, however: European societies are enmeshed in ever greater and more complex webs of interdependence, including economic, technological, social, cultural and legal interdependencies. This generates the feeling that opportunities (to move, act, interact, think) have exponentially increased. Yet, on the other hand, these societies are ever more dependent upon complex techno-social systems, external resources and beyond-control natural processes. This may be experienced as a threat and generate a sense of insecurity or dispossession. The socio-historical structure of Europe has massive psycho-sociological effects on Europeans. Such effects shape Europe’s social space in turn. The analysis of European societies should be carried on this twofold level, both socio-historical and psycho-social.
Place vs Condition
At the psycho-social level, Europeans seem to be struggling with a torn consciousness. On the one hand, they feel strongly about Europe’s situated condition. Europe is a historically, culturally and politically situated entity. It is bound to its colonial past and structured in such a way that it is deemed to perpetuate unjust structures of power globally and produce dominative, exploitative and destructive practices on its soil and elsewhere. On the other hand, there is the strong feeling that Europe does not provide the structure and meaning which may help each to find her own place in society, in the world and on earth. Many Europeans perceive their economic, social and moral position to be threatened by processes such as globalization, deindustrialization, mass migration, global warming or depopulation that Europe and its law seem to reflect and foster. This triggers powerful imaginaries about socio-economic downgrading and ecological collapse as well as destructive phantasmagorias about cultural displacement or demographic replacement. In other words, two spectres haunt Europe: an anxiety about its dominating condition and an anxiety about “placelessness”. This may seem to manifest itself as a polarization between progressive groups (focusing on domination) and conservative groups (concerned about place). The present condition of Europe is that of an extreme polarization of all social relations, especially along this divide. However, both matters of concern reflect an existential rupture of meaning that affects all of the actors in society. Our scholarly work needs not be partisan. It should take into account anxieties on both sides. This question is thus: how to turn this existential crisis into critical knowledge?
“A way of critique”
If we accept that the inner and everyday life of societies, and their current state of polarization, should become our focus, then we must give up on the project of providing constitutional or theoretical foundations to EU law. Our goal, instead, should be to critically engage with EU law. This requires both a theory of social reality adjusted to the current state of polarization of European societies and a theory of law that situates law within societies, as a reflective form of society. Such a move follows in the footsteps of critical approaches to law. A “traditional” critical endeavour, but one that only recently been embraced by EU legal studies, is to examine EU law – its rules and doctrines as well as imaginaries and framings – as a device that intervenes in a social field that is already structured around power struggles and asymmetries. It presupposes that EU law legitimates and accentuates the asymmetrical terms of social ordering. Its inherent indeterminacy as knowledge and practice is bounded to a broader institutional and normative dispositive that is determined to set the terms of domination. The task of critique is then to discern in EU law various forms of domination, which may be theorized in terms of gender, racialist, classist or extractivist domination. This calls for new approaches based on distributive analysis as promoted by the “law and political economy” movement or structural analysis as advocated by “post-marxist” theories. It calls for analytical tools such as anti-essentialism and intersectionality as developed by feminist and race theories. This way of critique opens our eyes to some troubling implications of EU legal constructions: the sorts of economic, social and cultural injustices these may produce or perpetuate. However, it may not suffice. Whereas it timely responds to the concern about our concretely situated condition, it seems to be less equipped to address the other concern, the sense of “placelessness” that widely affects European societies. The latter dimension presupposes a renewed attention not just to the EU’s dysfunctional structure and its social pathological effects, but also to the forms of life that persist in their being despite EU law’s failure to grasp them and make sense of them. Another form of critical thinking emerges out of this attention.
An “anti-transcendental” perspective
The crux of the experience of European integration is no longer its institutional structures but the different kinds of life, real or virtual, people manage to live – or do not manage to live –, given the infrastructures, institutions, imaginaries and laws of Europe. Our work should attend to the lived experiences of people subject to Europe and its law. This draws from the “anti-transcendental” perspective that Amartya Sen developed in a different context. As for EU legal studies, this essentially means shifting the focus from traditional questions concerning constitutional foundations, institutional design and forms of governance to questions about how social groups and individuals experience their concrete conditions of existence in Europe. Yet, it cannot be our aim to observe these lives as they unfold, not even to offer a description on how EU legal rules and concepts are experienced in the thick social world – this would require tools we do not possess, which are in the domains of sociology and ethnography. Rather, our aim is to investigate the ways in which EU law frames forms of life that exceed its current categories, and the debate on forms of life that goes with its framing. This implies a reorientation of the legal enquiry: we do not quit the legal text and its interpretation – as lawyers, we do not have “real” objects to work with, but mainly textual materials – but, within text, we look for “forms of existence” (social practices, cultural formations and modes of being) beyond “structures of discourse” (conceptual frames, oppositions and underlying conceptions). It is a question of re-routing the analysis. The central issue is not the nexus between the indeterminacy of law and an over-determined social field, saturated with power relations. Our interest is now in the ambivalence that is to be found in social forms of life and how it is transcribed in ambiguous law. Europe’s social setting is home to opposing imaginaries, contrasting ideas of justice, divided feelings, torn perceptions and ambivalent deeds. This is reflected in the proliferation of legal disputes, where conflicts are not just conflicts of interest or opinion but involve opposing ways of picturing reality. This concerns issues such as social suffering and destitution, state domination and coercion, migration, the place of minorities and religious faith, as well as questions concerning the coexistence of human and non-human forms of life. These are matters related to failed processes of socialisation, contested forms of identification and damaged ways of inhabiting the earth. In relation to such issues, political and legal claims are usually presented as “non-negotiable”. They are not easily subsumable under the conciliatory language of EU law, framed in terms of rights and balancing of interests. We should not be anxious to suppress this polarisation just because it is challenging our pre-existing normative views.
Receptivity and reflectivity
How to make home to these claims and how to make them negotiable again? This seems to me the main methodological challenges we are facing now. Two bold moves are required. One is to increase the receptivity of EU law to individuals’ and social groups’ negative social experiences, whether these experiences come into the terms of EU law, avoid them altogether or strive to resist and subvert them. The other is to increase the reflectivity of EU law. The problem is not just to reflexively consider the ideological choices that are underpinning the conceptual schemes and techniques we rely upon; it is to make these schemes and techniques sensitive to individuals’ lived experiences and critical understanding of own condition. The task that should occupy us is that of elaborating a proper legal framework that would allow picturing the broad range of lives lived in Europe and Europeans’ own critical understandings of Europe. This would be one way to give a footing to these lives, hold them together and help each of these to regain a sense of her own place in society, in the world and on earth.
References:
Adams, “A structural approach to labour law” (2022) Cambridge Journal of Economics, 447-463
Azoulai, “The Law of European Society” (2022) Common Market Law Review, 203-214
Barthe & Lemieux, “Quelle critique après Bourdieu?” (2002) Mouvements
De Witte, “Here be Dragons: Legal geography and EU law” (2022) European Law Open
Díez Sánchez, A Distributional Analysis of EU Law (OUP, forthcoming)
Garcia, Laisser être et rendre puissant (Presses Universitaires de France, 2023)
Guattari, The Three Ecologies (The Athlone Press, 2000)
Isailovic, “Critical approaches in EU law – still a blindspot” (September 2023)
Judah, This is Europe: The Way We Live Now (Picador, 2023)
Pescatore, The Law of Integration. Emergence of a new phenomenon in international relations, based on the experience of the European Communities (Sijthoff, 1974)
Relph, Place and Placelessness (Pion, 2016)
Sen, The Idea of Justice (Harvard University Press, 2009)
Salomon, “What’s Critical About Critical Phenomenology?” (2018) Puncta, 7-17