Postnationalism, Solidarity, and Law

Abstract

AbstractChapter 2, framed by the crises in austerity Greece and Europe’s fraught struggle to respond to the claims of refugees, argues that solidarity must aspire to more than mutually agreed forbearance and respect for a set of shared legal rules. While theorists of European integration have long conceived postnational civic bonds to be mediated by such forms of legal agreement, these cases have troublingly seen a punitive use of legalism to deny solidaristic politics. The reasons for this failure lie in reification: the process by which a legal rule abstracts from and mystifies social and historical relationships and thus misleads us about the problems it aims to regulate. The chapter illuminates the mechanisms of reification by bringing debates over Habermasian constitutional theory to bear on a specific policy context: the application of the principle of ‘mutual trust’ in the EU’s Area of Freedom, Security, and Justice (AFSJ) and in European asylum law. Scholars have criticized Habermasian ‘constitutional patriotism’ for its formalistic renderings of political recognition. This critique clarifies why and how ‘mutual trust’ creates structural disparities in both the protection of individual rights and the equality of Member States. Such disparities are due to Habermas’s mistaken acceptance in his mature legal theory of what his earlier social theory wisely took pains to reject: juridification, or the reification of value through legal process.