European Law Journal

Publisher:: Wiley
Publication date:: 2021-02-01

ISBN:: 1351-5993

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Demultilateralisation: A cognitive psychological perspective
This contribution seeks to illuminate the looming phenomenon of demultilateralisation and the return of and to the nation state, i.e. closure. Whereas many reasons for opening and closure have been discussed by Habermas in his eminent essay, we aim at providing an additional dimension, taking a psychological point of view and analysing this proclivity from a behaviourally informed perspective. Following a short recapitulation of the evolution towards postnationalism, we briefly sketch the current phenomenon of demultilateralisation and renationalisation. We then contribute to the current debate by providing cognitive psychological insights drawing on well‐researched biases that offer the greatest potential to explain the current outbreak of closing tendencies, namely prospect theory, including the endowment effect, framing, the availability bias and so‐called hawkish biases. This may add an explanatory dimension to why nationalistic politics have become again the beguiling sanctuary of the people. We attempt to define scope conditions of closure.
Discourse theory of law in times of populism
Jürgen Habermas's discourse theory of law has shaped debates on what we consider to be legitimate law. This contribution will firstly identify the Zeitgeist in which discourse theory emerged. Secondly, it points out the emancipatory potential of law that discourse theory has helped us to understand, both on a domestic and a transnational level. Thirdly, the paper turns to discuss two recent challenges for the discourse theory of law, namely (a) the realities of social power that undermine and contradict its promises, and (b) the rise of populism, which places the core normative assumptions of discourse theory in doubt.
Of citizens and plebeians: Postnational political figures in Jürgen Habermas and Jacques Rancière
This paper focuses on Habermas's notion of cosmopolitan democracy. Reconfiguring the basic ideas of democracy in postnational terms is inevitable if social and political integration is to succeed on a supranational level. In exploring Habermas's ideas, we draw on Rancière, whose thought stands in a complex relationship to Habermas. On the one hand, Rancière largely shares Habermas's diagnosis of the present. Both bemoan the erosion of the political caused by post‐democracy and censure the rise of right‐wing extremism in Western societies. On the other hand, and in contrast to Habermas, Rancière holds that these problems should be addressed not primarily by strengthening political institutions and reaching a consensus between conflicting parties, but by rethinking conflict and resistance. We show that Habermas's and Rancière's propositions can be productively brought in dialogue by focusing on the paradigmatic types of political subjectivity involved in their accounts: the citizen (Habermas) and the plebeian (Rancière).
Introduction
The inverted postnational constellation: Identitarian populism in context
As exemplified by the pan‐European ‘Identitarian movement’ (IM), contemporary far‐right populism defies the habitual matrix within which right‐wing radicalism has been criticised as a negation of liberal cosmopolitanism. The IM's political stance amalgamates features of cultural liberalism and racialist xenophobia into a defence of ‘European way of life.’ We offer an alternative decoding of the phenomenon by drawing on Jürgen Habermas's ‘postnational constellation.’ It casts the IM's protectionist qua chauvinistic populism as ‘inverted’ postnationalism, engendered through territorial and ethnic appropriation of universal political values. As such, inclusionary ideals of cosmopolitan liberalism and democracy purporting humanistic postnationalism have been transformed by Identitarians into elements of a privileged civilisational life‐style to be protected from ‘intruders.’ Remaining within the remit of the grammar of the postnational constellation, trans‐European chauvinism, we contend, is susceptible to inclusive articulation. Foregrounding radical emancipatory social transformation would however require not more democracy, but a principled critique of capitalism.
The asymmetries of pouvoir constituant mixte
This invited Symposium contribution discusses Jürgen Habermas's celebrated and influential theory of pouvoir constituant mixte. In that account, the EU is constituted by a double authority: that of citizens of nation‐states and that of (the same) citizens as subjects of the future EU. I argue that Habermas's theory is convincing only if the two constitution‐building subjects—citizens of the already constituted nation‐states and citizens of the to‐be‐constituted European Union—are positioned symmetrically in relation to each other. I argue that Habermas's construction is, in fact, asymmetrical. I identify three asymmetries: of expectations, of function and of origins. I argue that these asymmetries place the role of citizens as members of nation‐states in such an advantageous position that it would be irrational for citizens in their other capacity, as citizens of the to‐be‐constituted European Union, to participate in the constituent authority in the terms proposed and defended by Habermas.
Habermas's European constitution: Catalyst, reconstruction, refounding
Jürgen Habermas has long been one of the EU's most prominent and influential critical friends, engaged as much at the level of legal and political praxis as social theory. In particular, he has a close and complex longstanding interest in the idea of an EU constitution. On the occasion of his 90th birthday, I want to discuss three treatments of the EU constitution located in Habermas's work: constitution as catalyst, as reconstruction, and as refounding. We find the different treatments, and the priorities that underscore them, emphasised at different times—partly reflecting changing political circumstances. We also observe some tension between the different approaches. Yet, as someone broadly sympathetic to his overall project, I argue that the best understanding of the Habermasian position, and certainly the most attractive version of that position in today's political climate, involves reconciling all three treatments within a single package.
Challenging EU constitutional law: The Italian Constitutional Court's new stance on direct effect and the preliminary reference procedure
This article seeks to examine the relationship between EU law and the Italian legal order in light of the recent Italian Constitutional Court (ICC)’s jurisprudence attempting to redefine EU core principles. When fundamental rights are at stake, three assumptions are challenged: the determination of direct effect shall be a prerogative of the ECJ; EU directly effective provisions entail the disapplication of conflicting national law; judges have the discretion to refer preliminary references to the ECJ where a clarification on EU law is needed. The contribution argues that the judicial search for a balance between sovereignty and supranationality is undermined by the ICC's new resistance to the well‐established EU jurisprudence. In that respect, the paper posits that the ICC's activism is the result of an unjustified ‘argumentative self‐restraint’ of the ECJ vis‐à‐vis the evolution of EU foundational principles.
The highest Dutch courts and the preliminary ruling procedure: Critically obedient interlocutors of the Court of Justice
Little is known about the motives of national courts to request a preliminary ruling from the Court of Justice of the EU (CJEU) or their satisfaction with and implementation of answers. This article aims to fill this empirical gap on the basis of an analysis of judgments complemented with interviews with judges of the highest courts in the Netherlands. This article shows that judges extensively use the procedure and follow its outcome almost without exception, despite some dissatisfaction. This discontent has surprisingly not affected the courts' willingness to refer in future. The findings also downplay the bureaucratic politics and judicial empowerment theses emphasising strategic motives to refer. Instead, legal‐formalist considerations and the desire to contribute to the development of EU law explain most of the references of the Dutch Supreme Court. The decision (not) to refer of the three highest administrative courts is primarily based on practical and pragmatic considerations.