The Anti-reification Principle

Abstract

AbstractChapter 3 develops a sounder conception of solidarity in postnational constitutional law formulated as a principle of anti-reification. Drawing further on the critical theoretical framework of reification inherited from Lukács, Adorno, Benjamin, and others, the chapter argues that legal solidarity must aim to guarantee a particular form of adjudication, through which individual litigants in a particular case challenge the changing transnational structural conditions that give rise to individual harm. This adjudication affirms more ambitious forms of fallibilism and self-critique, acknowledging the degree to which a polity’s responsibility for others evolves outside of one’s control and thus requires critical reinterpretation over time. This changes the image we have of how to build solidarity through law. First, it sensitizes us to how legal rules, as responsive norms, take the form of narratives. They operate as emplotments of political actors, legal texts, public audiences, and individual litigants. Second, this view of responsiveness rejects the notion that a polity’s regulations can simply advance existing national interests or obligations without also endogenously affecting them. Solidarity’s temporal arc means that norms are always a product, not just a basis, of our engagement with others. This conception of solidarity yields critical resources to correct the structural imbalances of the existing Dublin Regulation on asylum transfers and adjudication thereunder. The chapter concludes with reflections on the principle’s application to other dilemmas of EU law, as well, notably in socio-economic rights and the ongoing stabilization of the Eurozone.