1. Introduction
Ben Judah’s This is Europe offers a powerful reminder that European legal integration is a process of ordering social relationships. Turning away from the grand narratives of European integration – those that start from high-minded ideals such as peace and prosperity – Judah offers a sobering account of living in Europe today. Only few of the narratives in the book can be read as an unqualified success – such as the story of Sezen and Andy that ends with the birth of an Erasmus baby or the homecoming of Syrian refugee Haidar in Berlin’s LGTB community.Footnote 1 The vast majority of narratives found in the book are of those who live at the margins of European societies, whose everyday lives are characterised by limitation rather than opportunity, oppression instead of emancipation and isolation in lieu of integration. Through these lived experiences, Judah presents a continent full of inequality, exclusion and alienation.
While the extent to which this image offers a truthful account of contemporary life in EuropeFootnote 2 remains an open question, the basic thrust behind Judah’s intervention – to present ‘Europe’ through everyday lived experiences – offers an important lesson for EU legal scholarship. In recent years, legal scholars have increasingly confronted the ‘reality deficit’ in European legal studies and the disconnect between EU law and ‘European society’.Footnote 3 The intuition behind these efforts is that many individuals and groups in Europe do not find EU law to be on their side, especially those who are not economically productive, law-abiding or financially self-sufficient.Footnote 4 The everyday lived experiences that are recounted in This is Europe, in other words, can be read as an invitation for EU legal scholars to widen their gaze and give a ‘voice to those who have been marginalized and/or disempowered by the law’.Footnote 5
But beyond that, the ‘everyday’ also serves as a starting point for legal scholars to critically reflect on how the discipline has conceptualised EU law as a tool for European integration. In the attempt to legitimise European integration through law, EU law has been constructed in a way that enables the EU institutions, but without considering how legal concepts and tools affect specific individuals and groups. The emerging notion of a ‘European society’ and its increasing use in scholarly discourses illustrates this institutional focus. Presenting EU law as grounded in a society founded on shared values, EU institutions and scholars legitimises far-reaching legal and political innovations, but does not account for the plurality of values and lived experiences of those part of that society. By taking these as a starting point, This is Europe offers a welcome means to think about the role of EU law and legal scholarship that remains undistorted by an institutional gaze.
2. Constructing a European society through law
Although jurists generally do not think of themselves as storytellers, the legal construction of Europe cannot be understood without the narratives that provide this activity with a sense of purpose and direction. Every legal analysis and argument is embedded within a broader conceptual framework that renders the law intelligible and meaningful.Footnote 6 One of the key themes in the narratives shaping the EU legal discipline is that the law serves to promote and legitimise the integration project. In this understanding, law forms a tool to construct a new legal-political order on the European continent. Consequently, EU law is presented not as expressing a pre-existing socio-economic and political reality, but rather as a tool that will bring about a new reality. The jurists’ view of their own role, as the title of a recent Festschrift reads, is one of Building the European Union.Footnote 7
But what is being built? In the past, legal scholars considered law as an instrument to construct a common market and as an emancipatory force that would release individuals from the shackles of the nation-state.Footnote 8 These narratives provided a rationale to propel the legal order forwards by presenting judicial innovations in areas like free movement and citizenship as the result of the inherent logic and ideals encoded in the founding treaties. They also helped legal scholars to understand their own role in this process: to interpret the law in a way that would create a more integrated market, enhance the rights of individuals (and, of course, businesses!) and contribute to the ‘perfectioning’ of the EU legal order.Footnote 9
Recently, some jurists have set themselves an even more ambitious task. Increasingly, the EU’s legal-political framework is being described in terms of shared identity, common values and – most importantly – as a nascent society. The functional and emancipatory rhetoric that justified the role of EU law in the past is now complemented by a narrative in which the law promotes and preserves a ‘European way of life’.Footnote 10 In other words, the new task is to construct a European society through law. In this narrative, shared values are at the heart of EU law, displacing economic objectives and individual rights. These values are not only supposed to express what Europeans hold in common, but also to be ‘part of the very foundations of the European Union legal order’Footnote 11 and define ‘the very identity of the European Union as a common legal order’.Footnote 12
Even though the shared values and society narrative originated as part of the European Commission’s communication strategy,Footnote 13 legal scholars increasingly embrace this narrative as their own. Conceptualising the EU as a society is an attempt to make sense of the integration project at a time when traditional legal concepts have lost their explanatory and justificatory force. The evolution of EU law is no longer narrated as a process of market-making, but as a transformation that led from ‘the state-centred law of the European powers to the normative structure of a democratic European society’.Footnote 14 At the heart of this structure are the foundational values that are codified in Article 2 TEU of the Treaties, forming the focal point and glue that hold the legal system together and drive its future development. These values are deployed to ascertain whether the actions of Member States impact ‘the functioning of the European Union as a common legal order’.Footnote 15 Consequently, the European society narrative not only justifies the continuous expansion of EU law’s scope and reach, but also enables jurists to do what they have always done: operationalise rules and principles in service of the EU’s institutional goals.Footnote 16
As such, the idea of European society refers not to an empirical reality, but forms a conceptual frame that carries the potential and promise to create new institutional facts. The emerging society discourse is thus intimately tied to an institutional vision of European integration that presents the EU legal order as a self-sufficient and complete system, carrying within it all the necessary resources for its future development. Indeed, the values of Article 2 TEU propose a ‘model’ of a good society, to paraphrase Advocate General Capeta, which ought to become a reality.Footnote 17 As part of the society discourse, Article 2 TEU values are cast as always having been present within the EU legal order, reflecting an ‘original consensus’ that is now violated by some Member States.Footnote 18 If these values were always implicit in the Treaties, their legal mobilisation appears self-evident and legitimate, as does the emergence of a ‘European society’ founded on those values.
As such, European society is co-constitutive with the European institutional machinery in Brussels, Luxembourg and elsewhere. It is something constructed from above. In this view, European society is found not in the streets, but in the courtroom, leading some commentators to muse how, in a recent grand chamber hearing, ‘[o]ne could not escape the impressions that the vast majority of this European society was assembled behind the Commission’s plea’.Footnote 19 As such, even the perplexing claim that ‘nowhere is Europe more real than in the law’ suddenly becomes intelligible.Footnote 20
And it is precisely in that sense that the ‘European society’ narrative – despite all its promise of transformation and renewal – appears highly traditional and out-dated, echoing Lecourt’s advice that to observe European integration: ‘c’est dans le pretoire qu’il convient de se placer’.Footnote 21
3. Problematising EU law’s disembeddedness
But is the courtroom really the best place to grasp the successes and vicissitudes of European (legal) integration at the present moment? The ‘European society’ discourse above all seeks to defend and assert the authority of EU law at a time when it is increasingly contested. In their quest for self-legitimation, those who proclaim the existence of a European society run the risk of omitting the narratives of the individuals and groups that constitute this society. After all, even if EU law were to constitute a society, it also operates in a way that ignores, marginalises and alienates various individuals and groups, as the contributions of my colleagues in this special issue illustrate. These legal discourses, in other words, are disembedded from the plurality of perspectives, lived experiences and stories of those at the margins of European society. What is missing from those jurists who deploy this language to construct new doctrines, as Leino-Sandberg notes, is an ‘interest in the empirical consequences of their project’, which follows from their belief that ‘the expansion of institutions and instruments is “good” and an objective in itself’.Footnote 22
The value of Ben Judah’s This is Europe is that it offers a profoundly different image of European society, or rather its absence, than is found in contemporary scholarly and institutional discourses. Judah’s protagonists are isolated, atomised individuals who are subjected to a variety of external forces beyond their own control: natural disasters, economic pressures and political conflicts leave a profound mark on most of the lives recounted in the book, while leaving little agency to address those problems. The vision of Europe that is contained in This is Europe thereby foregrounds that there is ‘no EU legal vision of collective being as a social form, a notion of society’ and shows how EU law fails to articulate ‘on whose behalf the Union acts or, more symbolically, what vision of life it represents’.Footnote 23
Reading Judah vividly illustrates the problem with attempting to assert the existence of a ‘European society’ through the study of legal texts, institutional procedures and political communications: such a society remains an abstraction. ‘European society’ as a conceptual framework is a figment of the imagination, something on the books, idealised but not a lived experience. As a term, it is deployed to frame and shape one’s perception of the EU and its law, namely as the means to offer a refuge in times of geopolitical conflict, social unrest and internal divisions. It creates the idea of a consensus about what Europeans have in common, while implying that the EU embodies our hopes, dreams and futures. But in doing so, it continues to ignore the perspectives of the periphery that are central to This is Europe, and to challenge, for better and worse, the EU’s value discourse.Footnote 24
To encapsulate it in one word, the narrative of a European society aims to reify a specific understanding of the integration project. The notion of reification is a familiar instrument in the toolbox of critical theorists to account for the way abstractions are treated as if they were concrete, real things, with the result that contingent social relationships appear as natural, immutable and objective.Footnote 25 Talking about EU law through abstractions such as society is a way of treating the law as if it has a life of its own, and as if its evolution were pre-determined and pre-programmed in line with ‘objective’ inner ideals that exist outside of human agency and subjectivity.Footnote 26 Such a narrative has no conflicts about the right direction, moments of discontinuity or contestation, but only the rational unfolding of the inner logic of the law.Footnote 27 The emergence of values as a prominent tool of EU law’s expansion, then, simply appears as part of the ‘legal DNA’ of the EU, as its inherent and unquestionable essence. This rhetorical framing is a familiar strategy to assert the authority of EU law. As Shapiro already noted in the 1980s, considering the EU’s fragile legitimacy, it may be best ‘to deal with juristic developments as if they were autonomous … After all, legal realities are realities too’.Footnote 28
The narrative of European society not only reifies, but also obscures. As an illustration, we can turn to the recent publication 70 Years of EU Law in which the Legal Service of the European Commission celebrates and promotes its own role as the guardian of the treaties.Footnote 29 In the narrative this book presents, the ‘integration of markets has notably been the outer form of the EU, whereas ideals have been the inner drive’.Footnote 30 These ideals, the president of the Commission claims, are expressed through values as ‘hard law’ that protect ‘every single EU citizen in the same way, across all Member States’.Footnote 31
But in contrast to the stories in This is Europe, in the Commission’s institutional prose these citizens are never concretised – are they students, expats, workers, mothers, activists? No one can tell. The only ‘concrete’ example of a citizen to be found in the Commission’s book is the hypothetical case of a young woman who dreams of ‘working in Lisbon despite coming from Helsinki’.Footnote 32 Not only does she have a right to free movement, but she can also export her social security benefits and ‘buy Finnish food products in Lisbon’.Footnote 33 And while it is undoubtedly true that ‘EU law and the case law of EU courts have brought about this process of transformation’, this example also reveals a clear lack of imagination about whose lives are being transformed by EU law.
Where are those citizens without the social, economic and cultural capital to work across borders, or those who do just that but without the comfort of the protections offered by EU law? And what about the residents in Lisbon – in this regard, the example is particularly unfortunate – who, in recent years, have protested against the gentrification, rising living costs and ever higher rents that accompany the rise of expats in the place they call home?Footnote 34 What role is envisaged for them in a European society constructed by jurists? And how does EU law protect those – the lorry drivers, seasonal workers, immigrants – who are so important to maintain ‘European competitiveness’Footnote 35 yet lack the voice and political clout to make themselves heard?
4. Conclusion: From construction to critique
Ben Judah’s This is Europe vividly illustrates what is lost when scholars co-opt the concepts and tools used by institutions for reasons of self-promotion and legitimation. By identifying EU institutions with the notion of a ‘European society’, the latter term is reduced to an instrument of construction and emptied of its sociological and critical content. This is especially unfortunate because the idea of ‘society’ has a long tradition of being invoked against the state.Footnote 36 But what can we expect from this constructive approach to EU law? What good can society building through law really do? If it is true that ‘the possibility of referring to a grand structural plan or to a compelling ethical rule is no longer available’, then narratives of common values and a shared ‘way of life’ will do little to reaffirm the role of EU law.Footnote 37 Indeed, the EU’s turn to narratives about values, society and a ‘European way of life’ seems to ‘be “more of the same” in the long litany of EU legitimating narratives’, while having little chance to legitimise the EU.Footnote 38
Instead of affirming the European society discourse, scholars ought to adopt a different posture towards the EU and its law. Today the EU is no longer the feeble and insignificant institution it once was,Footnote 39 but a powerful force that impacts and shapes the lives of hundreds of millions of citizens on a daily basis. Perhaps this also means that the Court of Justice and the Commission can fend for themselves, without requiring legal scholars to affirm their actions and discourses. Rather than promoting the idea(l) of European society as a means of explaining and justifying the role of law in the process of integration, legal scholars should subject the EU institutions to scrutiny and questioning. The EU is increasingly implicated in the exercise of coercive measures (via budget conditionality and border management), while the transparency of its procedures and the democratic legitimacy of its decision-making continue to leave something to be desired. If anything, these developments call for more critical distance – a form of ‘disenchantment’ with the EU as a political project, if you will.Footnote 40
Acknowledgement
I thank Jack Meakin and Loïc Azoulai for welcoming me to their seminar and giving me the opportunity to present my own work. This contribution builds on that presentation and has benefited from helpful feedback from all the participants as well as an anonymous reviewer, for which I am grateful.
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