Massimo Fichera reviews Paul Linden-Retek’s Postnational Constitutionalism: Europe and the Time of Law (Oxford: Oxford University Press, 2023), 312 p., ISBN: 9780192899187
Massimo Fichera is Associate Professor of Philosophy of Law at the Faculty of Law, University of Maastricht. His research and teaching interests lie in the area of constitutional and legal theory and EU constitutionalism, in particular the interplay between legal systems. In November 2023, Kasia Krzyżanowska interviewed Massimo Fichera for RevDem, where they explored the EU constitutional architecture and his idea of communal constitutionalism.
The book Postnational Constitutionalism: Europe and the Time of Law is a novelty for those who eagerly look for creative approaches to the quandary of constitutionalism beyond the State. According to Paul Linden-Retek, post-national constitutionalism is a critical-emancipatory project, consisting of a re-imagination of identity and self-authorship over time. For this to happen, constitutional open-endedness is necessary, particularly in the case of the European Union (EU).
The book’s premise is that constitutional open-endedness comes at a price. It demands us to dismiss reliance upon familiar, firm, clear-cut legal categories and concepts, which are expressions of the legalistic, functionalist ambition to coordinate nation-states through the intergovernmental, executive-led framework of the internal market and the liberal effort to expand discourse ethics beyond the State. This premise implies that the alleged benefits of functionalism are fallacious, for it misses the socio-historical character of legal or political conflict and, by doing so, flattens political time and opposes dynamic interpretations of value. By contrast, the concept of ‘fallibilism’, as the book argues, gives us the promise to uphold normative values such as distributive justice and democratic accountability, and, ultimately, provides a reconnection between the EU’s constitutional development and the electorate. Choosing this second path delivers uncertainty but in exchange transforms citizens from objects of a regulatory apparatus into authors of the law itself. In other words, the temporality of post-national constitutionalism is expressed by the interlacing of a nation’s past, present, and future—namely, a narrative. Such a narrative seeks to counteract the phenomenon of reification, which is understood in the philosophy of Georg Lukács as the configuration of social and historical relationships as timeless relations, as if the present reality were an inescapable straitjacket.
If citizens are mere objects of a regulatory apparatus, relationships are emptied of meaning and “all that now appears is all there is presumed ever to be.” We are reminded of Adorno’s warning that “all reification is a forgetting”: when the socio-historical character of legal and political conflict is dismissed, law becomes a tool for social maintenance rather than transformation. Linden-Retek considers the principle of proportionality as an example of a reifying form of ‘legal presentism’ because it satisfies social interests as they are here and now (as in the Viking and Laval cases[i]). What is needed is therefore a principle of anti-reification, one to be pitted against the narrow ‘presentism’ of European legalism. This is the transformative ideal of post-national constitutionalism, which promotes collective self-authorship over time, concreteness, contingency, utopia, fallibilism, responsiveness, and promotes democratic politics.
The call for a ‘time of law’ is a methodological device enabling critical reconstruction and, as a result, the identification of three dynamics: the relation between the material and the symbolic; the relation between the universal and the particular; and the relation between the past and the future.
Essentially, according to Linden-Retek, the temporality of law discloses the internal connection between constitutionalism and pluralism, in contrast to political constitutionalism, which does not conceive of a proper political process beyond the national legal framework. At the same time, however, temporality avoids abstract individualism and the parcellation of rights claims that is normally associated with neoliberal agendas. This reasoning applies to both the EU Treaties and human rights provisions contained in the Charter of Fundamental Rights (CFR) and the European Convention on Human Rights (ECHR). The author says that “A judgement—from a judge or a citizen—comes only through understanding the temporal character of the question posed.”
Law, as a source of anti-reification, reflects a concept of identity that is not static but is an ongoing subject of socio-historical inquiry. This is why refugee and asylum law are so pivotal to post-national constitutionalism, for they reveal the complexity of political membership and force us to take into account structural disadvantages and the entanglement of democracy, sovereignty, and globalization.
Linden-Retek is keen to show us this aspect, as can be gathered from the philosopher Giorgio Agamben’s observation that the political survival of humankind is nowadays only conceivable if the citizen recognizes the refugee that he or she is (as an act of imagination).[ii] Along with such recognition comes the realization that something is owed to the foreigner and the refugee. As the author points out, a critical theory of post-national constitutionalism must then focus on three distinct fields, namely social integration, constitutional interpretation, and constituent power as democratic self-authorship (as illustrated below).
In this frame of mind, Linden-Retek sets out to suggest in the first place a revised notion of solidarity. References to solidarity as a value or a principle can be found in the Preamble of the Treaty on European Union (TEU), as well as in Articles 2, 3, and 4(3) of the TEU. However, in reality both the proposals to reform the Dublin Regulation in the field of asylum law and the implementation of the ‘no bailout clause’ in Article 125 of the Treaty on the Functioning of the European Union (TFEU) (in the field of macro-economics) have revealed how solidarity has been interpreted to the benefit of predominant interests (in both cases at the expense of one specific country, Greece) without any reflection on what the common good ought to be. The Court of Justice of the European Union (CJEU) itself has systematically avoided clarifying the meaning and scope of solidarity as a legal principle in major rulings.[iii]
In Linden-Retek’s view, mutual trust is traditionally elaborated by scholars in Habermasian discourse ethics terms. Just like constitutional patriotism, it requires us to trust one another’s interpretation of principle as legitimate regardless of whether we share a common ground supporting that interpretation. It relies upon procedural reasoning (especially when it elaborates the principle of “all affected interests,” according to which no exclusion of anyone who is affected by the coercive measures of a legal community is permitted). Thus it neglects a substantive reconstruction of normativity. This configuration engenders a disconnection of politics from its cultural lifeworld, and of constitutional principles from their wide-ranging social imaginaries. In other words, the risk is that the “shared political culture” of mutual trust turns either into an abstract, mechanical rule-following process pursuing “effective protection,” or into a very formal, thin standard that conceals power asymmetries at the national level and differences in the interpretation and implementation of human rights agreements. In either case the appeal to inclusion comes from groups that already hold power and therefore from the start exclude others from defining the conditions for inclusion.
The terms of equal recognition and solidarity are therefore already settled by some at the expense of others: hence the call for a reconceptualization of mutual trust as ‘mutual care’, entailing an ongoing assessment of what it is for which we share responsibility, and, relatedly, a reform of the context in which responsibility-sharing takes place.
In other words, refugee rights should be seen as reflecting not merely individual interests in hospitality or protection, but also a public claim for international justice.
In this perspective, the standard of scrutiny set by the MSS ruling[iv]—the prohibition to transfer an asylum seeker whenever “systemic deficiencies” in the legal system of the State of destination are detected—is questionable because it neglects the particularities of each individual case. That ruling is then contrasted with other rulings in which, instead, concern for the individual case is visible.[v]
Analogously, enforced general oversight of deficit spending compromised the social fabric of Member States and turned EU institutions into “mere things,” disconnected from the agency of the people. It is only later that the CJEU admitted the possibility of ascertaining violations of fundamental rights by EU institutions when signing Memoranda of Understanding in the framework of the European Stability Mechanism.[vi]
Linden-Retek thus invites us, through the book, to consider three ‘constitutional imaginaries’ (to use Charles Taylor’s and Cornelius Castoriadis’s terminology): history (i.e. emphasis on historically rooted identities in a national community); system (i.e. the functionalism of the impersonal market); and principle (i.e. the abstract norms of communicative reason).
The first is exemplified by Dieter Grimm’s approach as a scholar and constitutional judge and the German Federal Constitutional Court’s particularistic reading of the notion of constitutional identity.[vii] The second is indebted to Niklas Luhmann’s understanding of law as a self-referential social system and is visible, in Linden-Retek’s view, in the shift from the “common market” to the “single market” and, more recently, in the Next Generation EU Recovery Plan. The third is associated with Habermasian discourse ethics, as well as the method of rational reconstruction of constitutional principles, à la Mattias Kumm, which are blamed for shifting their focus away from the peculiar context in which rights are politically achieved and the way citizens themselves reconstruct and engage in norm- and institution-making. These constitutional imaginaries are all flawed, in the author’s view, because they prioritize one temporal register over the other: history collapses present and future into past; system emphasizes the present; principle prioritizes the future.
By way of contrast, we are invited to opt for a fourth constitutional imaginary, i.e. analogy. Drawing on the work by Robert Cover, an American legal theorist from the past century, the author advocates an understanding of legal principles through analogical reasoning, a heterarchical form of thought that develops in light of the narratives giving them meaning. In essence, narrative renders law’s normative meaning intelligible across time: as a result, a legal order draws legitimacy from the narrative character of its diverse interpretation and, in so doing, resists its reduction to command, principled rationality, or mere aggregation of interests. Clearly, this approach demands judicial activism, seen by Linden-Retek as having the task not merely of clarifying a polity’s self-identity, but also of opening law to alterity. Things can always be otherwise.
Emphasis is thus placed on authorship, and in particular on courts, given their heightened ability to counter the reification of public value. However, courts are required to take into account the political and social relations of power expressed by the material constitution. Moreover, Linden-Retek is aware of the limitations of a court-centered approach and puts forward the democratic dimension of pouvoir constituant narratif (narrative constituent power), as explained below.
According to him, “actions become intelligible as part of an enduring political project.” Law must be open to challenge in order to endure. Differently from Ronald Dworkin, analogical law is not necessarily a purposive enterprise. It is a bridge, and as such it refrains from setting a normative ideal against which we can provide judgements. Rather, law exists only in time and consequently legal texts and legal reasoning must themselves be time-sensitive and subject to interpretation through multiple analogical voices. Moreover, differently from Habermas, the affective, historical, and self-contradictory character of legal authority is emphasized by the author: whereas the latter’s approach leaves existing forms of national democracy unchallenged and presumes a continuity between consolidated forms of constitutional agency at the domestic level and those at the post-national framework, Linden-Retek opens the door for possible radical alternatives with a view to reimagining rights and legal orders. It is not surprising that, in this view, Habermas’s pouvoir constituant mixte (dual constituent power) separates past from future and is irremediably “presentist,” thus undermining citizens’ ability to make a critical assessment of their community. In fact, dual constituent power relies upon a rationally reconstructed—thus hypothetical—past, and so neglecting the actual past. Settled constitutional arrangements can be contested through a renegotiation of the terms of acting in concert with others over time. This is ultimately freedom or agency in the Arendtian sense, understood as creating together something entirely new, and thus suggesting a move beyond the constraints of will and reason, to the extent of surpassing sovereignty’s indivisibility. In fact, sharing sovereignty really means transforming sovereignty.
This is why pouvoir constituant mixte is reconfigured as institutionalizing the authority to judge, instead of the authority of rational order or decisive command, which both advocate control or mastery. It is a call for Jacques Derrida’s iterability, that is, the capacity of meanings contained in norms to repeat themselves in new contexts and produce renewed interpretations. Hence the emergence of non-sovereign agency as relational, social, and historical, reflecting the political authority of acting in concert with others over time—in other words, pouvoir constituant narratif. This means reimagining the process of opinion- and will-formation as a recurring, creative practice of deliberation and public argument through which rights “can be contested and contextualized, invoked and revoked, positioned and repositioned,” to quote Seyla Benhabib, on which the author draws. Accordingly, Article 4 (2) TEU is reconfigured as providing for a right to constitutional narrative, rather than merely a right to national identity.
The book presents several points of contact with my own work on constitutional time,[viii] from heterarchy to the ongoing renegotiation of values and the critique against ‘presentism’, to the challenge to sovereignty and the reconfiguration of constituent power (in my case, discursive rather than narrative). The temptation is to measure the book’s actual distance from Habermas: after all, narrative constituent power is still a form of dual constituent power, encompassing national and supranational levels, reconceived as interacting with each other and taking the perspective of one another. In fact, Linden-Retek is favorable to Markus Patberg’s proposal to create a periodically elected constitutional assembly reflecting the perspectives of both national and EU citizens.
Despite its intriguing post-sovereign afflatus, the book seems to neglect at times the statist framework which persists as a dominant paradigm, with its political (re)claims and its stubborn configuration as the best repository of social and democratic guarantees. After all, individual rights claims are still often formulated within the State apparatus. The ground on which populist movements and parties emerge and grow is fertile for many reasons, including the unsatisfactory response to people’s ambitions and needs in the present. The temporality of law cannot leave this aspect aside. In addition, along with the national level comes the sub-national, including regions, cities, etc., whose distinctive feature is its proximity to the ambitions and desires of the “forgotten people.”
This brings us to the consideration of the legitimate authority of a political community, which draws not only on the protection of individual rights, but also on the self-preservation and self-empowerment of that community over time. The implications of self-preservation and self-empowerment—as features of what I call the meta-constitutional rationale of security, the stability of a polity in existential terms—ought to be grasped through a reflexive mode that goes beyond anti-reification. We would then discover how both ‘things’ and ‘people’ are part of discourses expressing a shared political morality as the background making the very interaction between institutional and non-institutional actors possible. The internal connection between constitutionalism and pluralism can only persist if the question of what it means to be secure for a polity is part and parcel of the deliberative process. Moreover, the deliberative process cannot leave aside issues of intergenerational justice, covering a variety of fields, from economics to the environment.
In this mind-frame, not only the temporal but also other dimensions of political life (for example, the spatial or the epistemic) are relevant and should be taken into account, both at the domestic and at the supranational level. Moreover, despite the author’s claim to the contrary, his emphasis is still only on courts, without considering the meaningfulness of their interplay with other significant actors, such as parliament or civil society.
Postnational Constitutionalism is ultimately a book that can open up new and unexpected paths for lawyers interested in the European Union.
[i] Case C-438/05 The International Transport Workers’ Federation and the Finnish Seamen’s Union v
Viking Line ABP and Oü Viking Line Eesti; Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet a.o.
[ii] Giorgio Agamben, Means Without End: Notes on Politics (Minneapolis: University of Minnesota Press, 2000), 25.
[iii] C-370/12 Thomas Pringle v Government of Ireland; Case C-62/14 Peter Gauweiler and others v Deutscher Bundestag; Joined Cases C-411/10 and C-493/10 NS v Secretary of State for the Home Department; Case C-528/11 Zuheyr Frayeh Halaf.
[iv] ECHR MSS v Belgium and Greece App no. 30696/09 para. 358.
[v] ECHR Tarakhel v Switzerland App no. 29217/12 para. 122; C-578/16 PPU. CK; HF and AS v. Republic of Slovenia.
[vi] Joined Cases C-8/15 P, C-9/15 P, and C-10/15 P, Ledra Advertising Ltd.
[vii] For example: 2 BvR 2728/13 Gauweiler, para. 100.
[viii] Massimo Fichera, “The Idea of Discursive Constituent Power,” Jus Cogens: A Critical Journal of Philosophy of Law and Politics 3 (2021): 159–80
