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This article seeks to remedy a fundamental flaw in the debate about European integration and European Union (EU) law: the almost complete absence of a reckoning with the legacy of empire and imperialism. The article shows that the significance of EU law can be understood only against the background of the historical transformation of the European public law order with the decline of the European empires. European integration is an integral part of a new European public law order that finally replaced the public law order of the European empires – Droit Public de l’Europe or Jus Publicum Europaeum – in which the European states held a privileged place as the only ‘civilised’, and hence, sovereign states in the world. The post-World War II European public law order entailed a new vision for domestic public law, but also constituted intra-European relations anew, and established a new set of external relations between Europe and its former colonies. With the shift from ‘European’ international law to ‘universal’ international law in the twentieth century, European integration helped carve out a space for ‘Europe’ in a world where Europe was no longer the centre of gravity.
On the occasion of the launch of the European Law Open, this article analyses two policy documents of the European Union (EU) on its ambitions in peace mediation, to think about what it could mean for European law to be open to the world. Reading these documents – ‘the Concepts’ – through the lens of the theme that I have been assigned for this opening issue – ‘Europe in the world’ – one discerns an outward-looking EU searching for a greater role in the international field of peace mediation. One also sees instances of eurocentrism: a set of assumptions about the superiority of European (or ‘western’) ways of knowing and doing. In these Concepts, the EU envisages sending EU mediators into the world – either to mediate themselves or to support mediation efforts by others. The Concepts also contain increasingly long lists of EU values to be carried along and distributed during peace mediation. But the Concepts do not consider that in the countries where the EU mediator arrives, this backpack filled with normative baggage may bring other associations. Without more explicit recognition of the EU’s obstinate baggage, the EU is unlikely to be an effective peace mediator or, indeed, a credible global actor. More generally, critical reflexivity could help the EU to address the lingering Eurocentric tendencies that these Concepts reveal. Such critical questioning by the EU of its own assumptions, as well as learning from perspectives from outside the EU or the past, can be a process of focusing on Europe in order to decentre it. That, then, could also be a mission for this bold new European journal.
This article detects a persistent imbalance between the zest for critical research and the thinness of critical methodology in the study of European Union (EU) law. The question that drives this investigation is: What can critique contribute to EU legal studies? The article draws on the methodological wealth of critical social theory to explicate how the critique of EU law could further evolve and why it matters. This analysis posits that the lack of adequate methodological engagement leaves EU law scholarship to drift between the problematic idea of unmasking critique, on the one hand, and that of supposedly non-normative critique, on the other hand. The article makes a case for a more dialectical method of critique to clarify how the critique of EU law is always preceded by a choice between competing rationalisations of society. These findings highlight that social theory should be of continuous interest to EU law scholars and that a socio-legal critique of EU law is not reducible to empirical research alone.
When are religious employers exempt from the prohibition of discrimination (i.e., when can they discriminate against non-adherents)? The European Union (EU) Equality Framework Directive exempts religious employers from the prohibition of religious discrimination, but the scope of the religious ethos exemption is disputed and its interpretation by the Court of Justice of the European Union (CJEU) in Egenberger and IR v JQ has been criticised for being ultra vires and for disrespecting the constitutional identities of the EU Member States. This article clarifies the religious ethos exemption, by examining the underlying legal and normative issues that determine its scope. It shows that the scope of the exemption depends not just on the Framework Directive but also on the relationship between EU law and national constitutional law and that between EU law and international law. Thus, this article not only provides clarity regarding the religious ethos exemption, but also uses these judgements as an opportunity to revisit these related constitutional issues, and in particular the role of the CJEU and EU legislature in defining the place of national constitutional identity in EU law.
Dialogue and debate: Symposium on Legal Geography and EU Law
This paper sets out a research agenda for EU legal geography. It identifies some central traits to the project of legal geography, a relatively new and increasingly populated interdisciplinary space that links legal studies with geography. While the EU and the project of integration appear to offer particularly rich soil for the legal geographer, very little attention has been paid to the ways in which the nature, structure and lived experience of the EU can be explained from a spatial and temporal perspective. For many reasons, as will be elaborated, this is a shame. Most crucially, perhaps, there is a growing realisation in EU studies in general that the authority and legitimacy of the EU depends, more and more, on how it is experienced by its citizens. Legal geography, with its spatial awareness and focus on the way in which space, time and law are co-constituted, offers a lens, language and conceptual framework to fill this void. While EU lawyers have occasionally and haphazardly ventured into the terrain of legal geography, much work is to be done. This could take the form of methodological, empirical, or conceptual work, and would offer a new dimension to existing accounts of European integration and to the central concepts in doctrinal and constitutional work in EU legal studies.
EU legal geography concerns itself with the mutually constitutive relationship between EU law and space (also, and increasingly so, time). This requires reconstructing and systematizing the widely used concepts which reveal the geographical basis of EU law (such as movement and circulation), but also developing a particular viewpoint, indeed a specific “ethos of investigation”, which equips us with the tools to challenge and transcend the dominant ways of doing EU law. In particular, it is argued that a geographic turn in European legal studies will foster the study of how law works “on the ground” and will allow challenging taken-for-granted ideas about the relationship between law and political order, while throwing new light on the very technical concepts with which we reconstruct, analyse and assess EU law.
This article argues that spatial exclusion is a central element of, and a precondition for, exclusion from fundamental rights. Keeping individuals who are seeking access to rights geographically separated from spaces ordered by the rule of law is a defining feature of the contemporary European legal order. The European legal space is surrounded by borderlands, which are not only humanitarian borderlands, but also legal borderlands. Unpacking the meaning of borderlands and frontier zones could, therefore, be greatly productive for future perspectives on legal geography.
This contribution to the symposium on Legal Geography and EU Law reflects on Floris de Witte’s paper. It makes two points: one about the potential of thinking about place in (and for) EU law and a second about the idea that potentiality itself – a notion which alludes to what could be – could be thought of in spatial terms. The overarching suggestion is that these ways of thinking offer insights into the meaning of meaning in EU law.
The article is a discussion of Floris de Witte’s ‘Here be Dragons: Legal Geography and EU Law’. It argues that this essay is a direct challenge to the traditional institutional thinking of European integration. This new approach suggests a turn to new empirical studies. But it also implies the elaboration of a new conceptual language for Europe. This language is still to come.
The European Union (EU) arose, in purpose, to undo the legacy of European geopolitics. Over decades, the EU has attempted to disrupt, or ambitiously transform, how its constituent communities “imagine” the space and boundaries of the Union’s geography. Yet, some 30 years since the Maastricht Treaty, old geopolitics manifests a distinct inertia over the mental maps of EU policy-makers and EU legal scholarship generally. For instance, should one query the EU’s cartography, it is likely an old geopolitical grammar conditions how policy-makers and scholars “map” and see the Union’s boundaries: 27 members, spanning 4,233,255 km2, and comprising a population of 447 million. Obscured is how the EU has generated a transnational and performative geography, with novel boundaries of rule that operate differently in quality and scale. In a nutshell, cartographic perceptions in EU policy-making and scholarship have rarely ventured beyond the terms of statist geography, or the worn geopoetry of “shared” or “pooled” sovereignty between Member States. This state of cartographic perception is curious, since the EU has been a geo-institutional project created to disrupt the traditional mentality of geopolitics and, further still, expand horizons of imagined social spaces, boundaries, and belonging(s).
The emergence and consolidation of European Community law (later European Union law) was rendered possible by key legal and political actors drawing a map of supranational law with the key concepts of direct effect, primacy and uniformity. The underlying assumption was that the actual territory of the law, the law on the ground, would come to fit into the drawn map. However, the last two decades have seen trust on the transformative power of the map drawn through such concepts decline, not least due to related developments. First, what looked like residual points of resistance have become polarized sources of contention over the scope and meaning of EU law; (2) sheer indifference towards EU law has emerged as a relevant attitude, partially replacing acceptance or opposition. Both developments have not led not only to a crisis of European law, but also to an existential crisis of the very actors (the “cartographers”) in charge of drawing the map of European law.
Dialogue and debate: Symposium on Michael A. Wilkinson’s Authoritarian Liberalism and the Transformation of Modern Europe
In my contribution to the symposium on Michael Wilkinson’s new book, I focus in on his analysis of Hermann Heller’s thinking regarding the state. Icompare Heller’s writings with those of Hugo Sinzheimer (1875–1945), a legal scholar, practising lawyer and politician who was in a position in 1918-1920 to shape the new labour law of the Weimar Republic and who thereafter became a prominent commentator on that law. In particular, Ilook at two publications from 1933: Heller’s Autoritärer Liberalismus and Sinzheimer’s Die Krisis des Arbeitsrechts, or ‘crisis of labour law’. I then consider the trade union movement’s orientation to the state during the Weimar years, and what light this shone on Heller’s and Sinzheimer’s analysis. I conclude by identifying several questions raised by the Weimar debates for labour law, trade unions and employment relations that are of enduring importance today.
Michael Wilkinson’s Authoritarian Liberalism puts forward a challenging and controversial claim: the history of European integration and the trajectory of the constitutional orders of the founding Member States have always been driven by authoritarian liberalism. This comment focuses on a certain slack, in Wilkinson’s analysis, between the material constitution of European states and authoritarian liberalism as a form of government. More specifically, the comment highlights the need to retrieve a more conflictual relation between, on one hand, the material constitution of the welfare state and its industrial involvement, and on the other hand, the constitutional forms adopted by authoritarian liberalism.
The tension between the cosmopolitan vocation of the economy and the national character of politics has lately reached a considerable level of pressure, as control over some political economic determinants of growth has been gradually acquired by European Union (EU) institutions at the expense of national political communities. In his book Authoritarian Liberalism, Michael Wilkinson calls this development a depoliticisation of fundamental decisions concerning economic and socio-economic relationships, a process which has culminated in the Maastricht Treaty. In my comment, I intend to explore the argument concerning depoliticisation, by examining the relationship between economy and politics from a constitutional standpoint. While I agree with the author that depoliticisation has been systematically translated into a political mode of screening decisions concerning economy behind the narrative of necessary and unavoidable developments within the European project, I take a difference stance on the meaning and risks of depoliticisation. I shall argue that a certain form of depoliticisation is intrinsic to any process of constitutionalisation understood as a reflex of a political will. I then shall explain that European constitutional culture’s anti-political prejudice may have at times transfigured depoliticisation into a technique to tame and restrict disagreement.
Michael Wilkinson’s Authoritarian Liberalism is an important, and, in many respects, praiseworthy contribution to the debates on the present state of the European Union (EU) and its highly problematical future. Its recourse to political economy in the re-construction of the integration project contrasts innovatively and instructively with the usual, if subtle, stories told about the history of Europe’s “integration through law” and its promotion of an “ever closer union among the peoples of Europe”. The spectre of “authoritarian liberalism” is a counter-narrative which exhibits the socio-economic dimensions and forces us to consider the political quality of European rule, in which Europe’s “material constitution” is a key concept of these analyses. “Authoritarian liberalism” is more than just a catchy characterisation of Europe’s constitutional constellation. The resort to this notion ties in with a conceptual history that definitely deserves to be remembered and continued.
This response to critics gives me the opportunity to develop some aspects of the argument in Authoritarian Liberalism and the Transformation of Modern Europe. I do so by foregrounding the concept of political freedom, articulated by Franz Neumann. Authoritarian liberalism operates by suppressing political freedom and democracy. First making its mark in late Weimar, authoritarian liberalism is constructed in a more passive fashion in the decades after the Second Word War. Although it is contested by social movements in the 1960’s and 70’s, it is ultimately reinforced in the turn to neoliberalism. This reaches its apogee at the Treaty of Maastricht, with the de-politicization of economic and monetary union and the deepening and widening of the European Union. German ordoliberalism, which functions as an ideological support to authoritarian liberalism, is instructive, but is only a part of this story; Germany is at most ‘semi-hegemonic’ in Europe. Authoritarian liberalism operates instead through limiting the constitutional imagination in all member states of the Union. I end with some reflections on Walter Benjamin, whose philosophy of history inspired the cover of the book.
It is widely acknowledged that the contextual study of European Community law, later European Union law, has contributed to a richer understanding of EC/EU law. This review proposes a contextual reconstruction and analysis of EC/EU law in context, or what is the same, it considers the institutions, milieus and debates which fostered the analysis and assessment of EC and EU law as ‘an intricate web of politics, economics and law’, at the same time that facilitated the development of critical self-consciousness about the underlying assumptions that scholars (including contextual scholars) bring to their study of law. This is done by engaging with the work of Francis Snyder, and in particular, with his groundbreaking collection “New Directions in European Community law”.
This is a review of the edited collection of Jan Klabbers and Gianluigi Palombella, ‘The Challenge of Inter-Legality’ (Cambridge, 2019). It considers how the volume revisits the influential concept of ‘inter-legally’, introduced by the Portuguese sociologist Boaventura de Sousa Santos 35 years ago. The main focus of the review is an evaluation of the editors' innovative and extended attempt, supported by many of the contributions, to account for inter-legality not simply as a sociological phenomenon - an effect of the interpenetration of legal orders - but as an idea with its own specifically legal content. In so doing, the editors provide a new normative dimension to our understanding of contemporary legal pluralism on the global stage. It is important, however, to continue to recognise the limitations of any single juridical idea in contributing to our understanding of global (in)justice.