‘History, system, principle, analogy: Four paradigms of legitimacy in European law‘ (2020) 26(3) Columbia J. of European Law __
The constitutional dimension of European Union law promises—in its most ambitious forms—reflexive structures of post-national democratic community. But this ambition poses profound philosophical challenges for how we think about the legitimacy of European judiciaries—the relation between legal decision-making and the ideal of post-national self-authorship. European constitutional law not only coordinates new forms of public power, but its jurisprudence also normatively justifies (or fails to justify) that power in what must be similarly reflexive discourses of legitimation.
This article argues that theorists of European law have thus far paid too little attention to the thicker socio-cultural registers through which this legitimation occurs. They have thereby settled with an overly narrow legalistic or procedural view of constitutionalism, which restricts analysis of the ‘constitutional imaginaries’, or interpretive paradigms, underpinning divergent legitimations of law.
This article develops a framework for such an analysis by utilizing a cultural study of law and strands of American constitutional theory. The article’s main aim is to formulate a typology of interpretive paradigms presently at work in European law and to trace their relation to the normative hopes of reflexive constitutionalism. The argument articulates four distinct paradigms in European legal thought, namely those structured by history, system, principle, and analogy. While the former three paradigms comprise the predominant coordinates of contemporary European legal rationality, they also remain unhelpfully tied in crucial respects to the Westphalian sovereigntist mode of legal authority. Only the last paradigm—grounded in analogical reasoning—offers the seldom-seen but essential bearing, I argue, of transformative post-national constitutional law. As claims made analogically, concerns become interdependent and one’s autonomy becomes tied to the interpretations of others. Analogical thinking thereby offers unexplored resources for reviving post-sovereign, non-hierarchical practices of political life.
The article makes two analytic and normative contributions: (1) an understanding of how common varieties of legal reasoning contribute to the de-politicization of post-national government—and thereby to European law’s political deficits that leave it vulnerable to ideological capture or populist revanchism; and (2) novel grounds for the democratic legitimacy of Europe’s constitutional project.
Part I, drawing on recent developments in economic governance and fundamental rights jurisprudence, develops the typology of interpretive paradigms that characterize prevailing European constitutional discourses: history, system, principle. This typology helps to critically assess how these paradigms increasingly steer European constitutionalism toward fragmentation and ideological consolidation. Part II formalizes this critique as the presence of a common fault—continued investment in the ‘coherence’ of particular legal orderings that negates law’s reflexivity. Denying coherence, reflexivity requires instead what I term ‘intelligibility’—law’s character as an object whose normative commitments are open-ended and must be re-interpreted over time. In response, Part III develops the fourth paradigm—analogy—as a framework of legal thought that sustains the intelligibility of law. Part IV makes these points concrete, locatingnascent principles of analogical reasoning in European jurisprudence, notably in the exemplary recent Opinion of Advocate General Mengozzi in X and X v Belgiumon the provision of humanitarian visas under EU law.
‘The subjects of spatial statism: Reclaiming politics and law in international entanglement‘ (2020) 18(1) Int’l J. of Constitutional Law 36-44
In their Foreword, Hirschl and Shachar challenge the supposed contemporary decline of state sovereignty and describe the enduring and expansive spatial reach of state power to counter threats to sovereign territorial control. This Afterword looks into the normative foundations of this account and its consequences for public international law and for international courts, in particular. “Spatial statism” exposes, I argue, a disjunction between the concepts of state sovereignty and popular sovereignty—and thus disrupts the normative expectation that those subject to the law are also its authors. It is this expectation that international judicial review must seek to restore. The attempt to do so is burdened by analytical and practical difficulties. But the project, I argue, is essential. In confronting the new “spaces” of international entanglement, judges must redeem the idea that citizens might yet reclaim those entanglements as a “common world,” not just a space in which they are brought together, unfreely, under the mantle of state coordination and coercion.
‘Cosmopolitan law and time: Toward a theory of constitutionalism and solidarity in transition’ (2015) 4(2) Global Constitutionalism 157
This article seeks to confront the contemporary condition in which cosmopolitan law – meant to resonate as something citizens across borders author and live together – instead is increasingly a source of detachment, confusion, and alienation. Taking the European Union’s twin crises of democratic legitimacy and social solidarity as its starting point, the article offers a critique of existing approaches to supranational constitutionalism that are insufficiently responsive to this disenchantment. The article’s purpose, in turn, is to present perspectives from philosophy and legal theory that might promisingly recast, in this new cosmopolitan frame, our thinking about law as a mode of social integration. Specifically, the article’s central claim is that time – as a seldom-examined, yet essential dimension of law – is closely linked to law’s cosmopolitan potential and, concurrently, to the motivational resources for cosmopolitan solidarity. It is through a sensitivity to time – our awareness of the past passing into the present in anticipation of a future – that citizens can meaningfully hold together cosmopolitan law’s dual, ostensibly divergent hopes: shared commitment and self-decentring plurality. Drawing on Seyla Benhabib’s ‘democratic iterations’ and its roots in the work of Jacques Derrida and Robert Cover, the article elaborates the following two concepts: ‘cosmopolitan promise-making’, a diachronic form of cosmopolitan political agency; and ‘cosmopolitan legal narrative’, a set of plural, evolving constitutional interpretations open to mutual engagement over time. These concepts, in temporalizing our understanding of political identity and constitutional law, together serve to underwrite a cosmopolitan legal order without also thinning solidarity’s social and democratic foundations. The article concludes with a critique of the contemporary role of European courts and a concrete vision for the cosmopolitan development of EU jurisprudence. Reinterpreting Article 4(2) TEU as the right to constitutional narrative, the article advances new modalities and normative aspirations for constitutional interpretation beyond the nation-state.
‘The Spirit and Task of Democratic Cosmopolitanism: European Political Identity at the Limits of Transnational Law’ (2012) 8(8) Croatian Yearbook of European Law and Policy 175-226
The problem motivating this essay is the continuing, yet difficult hope for a Europe of democratic cosmopolitanism, for a Europe in which cosmopolitics works to continually question the terms of lingering exclusion while preserving our ideals of self-legislation and democratic authorship. In what follows, I expand the familiar criticism of Europe’s democratic legitimacy gap, its democratic deficit, as a lens through which to analyse the possibility of a supranational participatory identity within the European political space. First, I describe the contemporary juridification of European politics, specifically concerning the legal formalism of the European Court of Justice, and the dangers such depoliticisation poses to the search for a cosmopolitan demos, depriving it of its solidaristic base. Second, I offer a critique of Jürgen Habermas’s ‘constitutional patriotism’ as a viable frame in which Europeans might hope to dissolve the contradictions of a nascent constitutional democracy at the supranational level. Rather, following the work of Bonnie Honig, I develop a more primary and original paradox confronting the European Union: the ‘paradox of politics’, which posits the radical indeterminacy of the demos as the starting place for the creation of any political identity. Third, drawing on the work of Ernesto Laclau, I develop in greater detail the processes of symbolic identity-formation involved in such a creation, namely the interplay of inclusion/exclusion that characterizes modern political attachment. What this analysis elucidates is that the problem of EU constitutionalization and political integration is the problem of borders or of the closed polis, in general. The apposite symbolic frame of European political identity is therefore that of ‘the heterogeneous’, that which constructs yet destabilises our settled understanding of boundary and border and shows them to be contingent. Further, I argue that the operative European political subjects are now in a certain sense the refugees, the sans-papiers, and the third-country nationals, each of whom serves to remind EU citizens of this foundational contingency of existing legal orders. Practically, I analyse European citizenship and immigration laws within their broader institutional and policy contexts: asylum and refugee policy, Frontex and the EU’s border security policy, and the promise and dangers of various models of disaggregated citizenship operating within the European legal space. Finally, I conclude with a preliminary discussion of the political task that we might appropriately call European cosmopolitics: the reinvention of emancipatory and utopian possibility into the future, beyond the nation-state to the droit de cité, the assertion of unconditional citizenship. Here, the European city—as a site in which the droit de cité can be anticipated and achieved—is where new supranational sovereignties might be born.
‘Supervised Independence and Post-Conflict Sovereignty: The Dynamics of Hybridity in Kosovo’s New Constitutional Court’ (with Steven Hill) (2010) 36 Yale Journal of International Law Online 26-43
‘Judith Shklar’s Critique of Legalism‘, with Seyla Benhabib, forthcoming in The Cambridge Companion to the Rule of Law, eds. Jens Meierhenrich and Martin Loughlin.
In German translation: ‘Judith Shklars Kritik des Legalismus’ (2018) 9(2) ZPTh – Zeitschrift für Politische Theorie 179-192
The origins, social function, and the legitimacy of law were life-long pre-occupations for Judith Shklar. She was one of the first political philosophers of the post-WWII period in the Anglo-American tradition to devote intense attention to the role of law in liberal-democratic societies. In this respect, her work is more in line with European thinkers such as Max Weber, Franz Neumann and Harold Laski, and of course, her adviser, Carl Friedrich, who was the first to recommend to her that she consider the topic of legalism. From her 1964 book on Legalism to her 1987 essay on “Political Theory and the Rule of Law”, Shklar develops a contextualist analysis of law that situates it within socio-historical and cultural conditions, while seeking to avoid the normative scepticism to which such contextualism might lead. This tension between the socio-historical function of law and its normative content are the two poles around which her reflections vacillate, without quite reaching an equilibrium. In her work, “the facticity” and “the validity” of the law face each other as unreconciled dimensions. In this chapter we first consider Shklar’s early book on Legalismin which she distinguishes among aspects of legalism as ideology, creative policy, and an ethos of the law. Shklar’s critique of international criminal law, to which the second half of Legalism is devoted, is being revived today by those who share her scepticism. But this revival misrepresents the subtleties of her position and needs to be balanced against her full-throated defence of the legitimacy of the Nuremberg Trials, which, we will argue, merits consideration along with Hannah Arendt’s Eichmann in Jerusalem. Over the years, Shklar sought to differentiate more precisely between ‘the rule of law’, which she continued to defend rigorously and ‘legalism’ as a mistaken theory and practice of it. The scepticism of her early work was tempered by her more nuanced analysis of the rule of law in later writings. We turn to an elaboration of this distinction in the latter half of this essay.
‘A world held in common: Reply to Sarah Song’ Borders, Refuge, and Rights, Robert L. Bernstein International Human Rights Symposium, Yale Law School, 4-5 April 2019
‘Structure and Paradoxes of European Asylum Law’, guest lecture, Refugee, Migration, and Citizenship Law: A Comparative Perspective (Prof. Seyla Benhabib), Columbia Law School, 26 March 2019
‘Habermas’s ‘The European nation-state’ and post-national belonging’, guest lecture, Borders, Culture and Citizenship (Prof. Seyla Benhabib), Yale College course, 14 November 2018
‘The European system of human rights protection’, guest lecture, Theories, Practices, and Politics of Human Rights (Profs. Thania Sanchez and Nick Robinson), Yale College course, 9 March 2017
‘”Well-founded fear”: Growth and crisis in international and European refugee law, 1951-2016’, guest lecture, Borders, Culture and Citizenship (Prof. Seyla Benhabib), Yale College course, 24 October 2016
‘Imagining the post-national constitution’, Common Law Society Summer Program, Czech Republic, 12 July 2016
‘Human rights protection in Europe: logics, achievements, and limitations’, guest lecture, Human Rights Theory and Practice (Profs. Alice Miller and David Simon), Yale College course, 2 February 2016
‘The Greek crisis and the failure of European solidarity: Limits and possibilities of human rights law’, Human Rights Workshop, Yale Law School, 5 November 2015
‘“Return to Europe”: The constitutional futures of existential revolution, 1989-2019’, American Political Science Association (APSA), Annual Meeting, Washington, DC, 29 August 2019
‘“Return to Europe”: The constitutional futures of existential revolution, 1989-2019’, Philosophy and Social Science (Critical Theory Colloquium), Prague, 30 May 2019
‘History, system, principle, analogy: Four paradigms of legitimation in European law’, EU Law Works-in- Progress Panel, Association of American Law Schools (AALS) Annual Meeting, New Orleans, 2-6 January 2019
‘History, system, principle, analogy: Four paradigms of legitimation in European law’, EU Constitutional Imagination: Between Ideology and Utopia, iCourts, University of Copenhagen, 1-2 November 2018 (video recording)
‘A faltering transnational order: Populism, European integration, and the long shadow of Schmitt’s Grossraum’, American Political Science Association (APSA), Annual Meeting, Boston, 2 September 2018
‘Saving judgments: Discourses of authority in European asylum law’, The Disintegration of Europe and the Refugee Crisis, Columbia Law School, 16 April 2018
‘Cosmopolitan legal narrative: Commitment to a law not merely one’s own’, Association for the Study of Law, Culture, and the Humanities, Annual Meeting, Stanford Law School, 1 April 2017
‘The fault in ourselves: European law and the claims of refugees’, American Political Science Association (APSA), Annual Meeting, Philadelphia, 1 September 2016
‘Cosmopolitan legal narrative: Commitment to a law not merely one’s own’, New England Political Science Association (NEPSA), Annual Meeting, Newport, Rhode Island, 23 April 2016
‘Solidarity as a post-national legal concept, or what is it to be a cosmopolitan constitutional patriot?’, 23rd Annual Critical Theory Roundtable, Yale University, 1-3 October 2015
‘Cosmopolitan Law and Time: On the Temporal Foundations of Supranational Solidarity’, Graduate Student Conference, Department of Political Science, Yale University, 17 April 2014
‘Solidarity in Liquid Times: European Constitutionalism, Cosmopolitan Receptivity and the Meaning of Law,’ Democracy in Times of Crisis, Charles University, Prague, 14-15 November 2013
‘Solidarity in Liquid Times: European Constitutionalism, Cosmopolitan Receptivity and the Meaning of Law,’ Empathy: An Interdisciplinary Conference, Yale University (Department of Comparative Literature), 26-27 April 2013
‘Juridified Identities and the Limits of a Transnational Legal Order: Groundwork for a New Europe of Democratic Cosmopolitanism,’ Conference on Advanced Issues of European Union Law—10th session, EU Enlargement: Identities, Values and Market, IUC Dubrovnik, 22-28 April 2012
(Photograph: Josef Koudelka, “France”, 1973, detail, Collection Centre Pompidou, Paris, Don du Jeu de Paume, avec le soutien de Magnum en 2013. Ancienne collection du Centre National de la Photographie. © Josef Koudelka / Magnum Photos © Centre Pompidou / Dist. RMN-GP)