Prof. Paul Linden-Retek rethinks what unites the European Union

Linden-Retek, who joined the UB Law faculty in 2020 after fellowships and teaching assignments at Yale University and New York University School of Law, teaches in the areas of constitutional law and international human rights. With a doctoral degree in political science from Yale, where he also earned the JD, he has expertise in modern and contemporary political theory, as well.

That multidisciplinary approach is evident in Postnational Constitutionalism, and Linden-Retek agreed to expand on his ideas in the Q&A below.

You’ve brought a wide range of theoretical perspectives to this project. Was it difficult to craft a coherent argument when you’re looking through different lenses?

It was, and the results will of course have to speak for themselves. That ambition to look through different lenses is in a sense a symptom of a judgment about the nature of law and legal inquiry, one very much alive at UB Law, and with critical legal scholars, and scholars of law, society and culture. In addition to more traditional doctrinal analysis, the attempt to understand law’s role in the problems plaguing European integration required drawing together theoretical perspectives across sociology, philosophy, history and political science.

But I did find a guiding thread in a concept from the early Frankfurt School of critical theory that I was inspired to return to quite late in the drafting process, by colleagues here at the law school, in fact: the concept of reification. Reification offered an elegant account of how certain familiar social and historical categories—nationhood, race and class, for example—are misattributed as natural and timeless. This turns demands for political and social recognition into demands that we affirm one another simply as we already are. Left no time for us to see the possibilities in either our past or future, we find no space in which to seek new relationships with others. This dooms a project of postnational constitutionalism, which aims to realize politics and law beyond the boundaries enforced by the nation-state, its presumptions about belonging and its organization of the economy. This diagnosis lays the groundwork for how the book then reimagines European constitutionalism and its ambitions.

You argue that the EU’s difficulty in fostering solidarity among the citizens of its disparate nations stems from this notion of reification, of treating social and historical relationships instead as abstract, immutable and timeless. How might EU member states and European citizens become more open to your utopian vision, to that different frame of narrative?

The answer might lie in thinking about the notion of a narrative political life. Benedict Anderson famously understood nationhood to be constructed by a particular form of narrative: what he called the “homogenization” of time into an unbroken, linear understanding (and expectation) of temporality. Such a view is the source of slogans such as “Make America Great Again” or Brexit’s “Take Back Control.” This is a politics in search of sovereignty and mastery, in short: a reification of the relations among us. This is all anathema to a postnational project that must consciously make new space for the concerns of others.

By contrast, the book suggests for the European Union a narrative tied to a different form of time. By emphasizing time, I don’t mean that European postnationalism must occur over a certain span of time—the question for me is not the speed or acceleration of the integration process. It’s something more fundamental about the character of postnational law and the quality of political action and judgment it requires of citizens.

My account of time asks us to see the polity as a subject whose basic commitments are always, self-consciously, the products of its unpredictable political engagement with others. This rejects the homogenizing notion that narratives can ever be “authentic” or merely “identity-conferring”—“our own.” I recast notions like political freedom and constitutional authority away from an ideal of sovereignty and toward a future that is not yet given—about which we can speak and for which we can act only with humility, a sense of fallibilism, a responsibility for our relations to others, and self-reflection. This does not mean that we cannot believe in our values deeply, but we must understand that what our constitutional principles demand of us is not static, and that others might always teach us something about what we believe. This account of law has the virtue of allowing for the possibility that others know us better than we know ourselves.

Have European courts failed to articulate such a virtue?

I worry they have, yes. They’ve tended to hinder efforts to make good on this open-ended conception of a polity. In the book I rather harshly criticize the German Federal Constitutional Court for failing, at the height of the Eurozone crisis in 2014, to consider in its jurisprudence Germany’s responsibility for the systemic fiscal stability of more vulnerable member states and of the Eurozone as a whole. The court instead sought to impose conditions of austerity onto others on grounds that the integrity of German democracy required it. The worry that German democratic demands might devastate Greek citizens and their own democracy—however that worry might ultimately be judged— found no jurisprudential hearing in the court’s reasoning.

This is what I mean by reifying relationships in the world: for the German court, the problems before it were set within abstract and timeless categories (democratic self-determination, budgetary autonomy). What it could not see was that such notions, invoked so easily and so authoritatively by the German state, no longer were available to the Greek one. The court was blind to the concrete, ongoing relationship between the German and Greek polities, in which German democratic and fiscal autonomy were increasingly bought at the price of Greek freedom. It remains a staggering failure of solidarity for such a realization to find no judicial expression by an apex court in a postnational legal order.

This question of solidarity, you write, has been made more complex by recent arrivals of migrants and refugees. How so?

This presence does indeed complicate the question of solidarity, in the sense that it makes it more challenging. But I write in the book that it also reveals something profound about the unfinished project that solidarity is. That is to say, our understanding of solidarity would be impoverished were we to contend only with the question of whether to admit migrants or refugees yet ignore what this admission might ask us to change in our way of life, in our basic institutions and our culture. The point is not simply to better include others in “our” affairs as they are, but to address those aspects of our politics that had wrongly served to create and to condone the original exclusion. So I talk in the book about refugee law, in particular, as a site of political transformation—a call to see borders not as guarded sites of conditional entry but as sites that reveal historical relationships and place new demands on the values we had thought already familiar.

I consider the question of what Europe owes refugees as foundational to the future of Europe as a postnational project with the ambitions I have articulated here. Most other treatments of EU law imagine the horizon or task for European integration to be essentially self-referential: the goal is integration itself, an ever greater and deeper consolidation of the EU. I think this is a mistake. It does a disservice to the emancipatory, critical potential that the EU, in my view, still holds: to create more just relations among states and peoples, rather than simply better coordinating them as they already are.

As you say, your solution is to adopt a form of “narrative thinking” that allows for both past traditions and future possibilities. Is this, then, a kind of storytelling? Who gets to tell the story?

It is. That’s what Hannah Arendt called it. Our identities as human beings, she thought, come about through our speech and action as they appear in the world. We make sense of such appearance through the stories we tell. But notably, we also understand that we never author these stories alone. We speak and act, Arendt believed, in unpredictable, endlessly intersecting ways in relation to others; and we therefore don’t exercise control over the identities we have. This is why taking narrative seriously cuts through the misguided pretension to mastery and sovereignty.

And so to your question of who gets to tell the story, which is really a set of plural, overlapping stories. It will be a disappointing answer, perhaps, but one simply cannot know ahead of time, in advance. To resort to a rule of inclusion—say, “those whose interests are affected must be allowed to speak”—is less than helpful. It quickly prompts further questions: what interests count, how deeply must they be affected, who gets to judge these things? So I’m skeptical that the question of who gets to speak can be answered in this way. Perhaps we should think of the answer not as a rule but as a disposition: openness to the possibility that new others will always be implicated in our lives, sensitivity to the limits of one’s own prejudices and their partiality, and a willingness to change one’s commitments or be persuaded to see them differently. For all of this, the question of who gets to tell the story must be asked, urged even, but left without a definitive answer. With every stranger comes the hope, in Arendt’s words, of a new beginning.

Let’s return to law for a moment: what role can courts and legal institutions play to sustain this kind of narrative disposition of the EU?

I should give you a concrete example. In the book, I focus on one particular case that has haunted me since I followed the submissions and read the court documents. It's a case that ultimately does turn, at least the judgment of the European Court of Justice (ECJ) does, on who gets to tell the story. It is a case from 2016 about a couple from Aleppo, Syria, who sought, with their three infant children, humanitarian visas to enter Belgium in order to seek asylum. The father applied for these visas at the Belgian Embassy in Beirut, traveling there at great risk but seeking to avoid the still more perilous journey across the Mediterranean Sea that most other refugees must make to seek safety in Europe. The humanitarian visa was, admittedly, a shortcut that European states have thus far refused to make available to refugees. The legal question posed by the case was whether the EU Charter of Fundamental Rights requires member states to grant humanitarian visas in circumstances where such protection is necessary to avoid exposing applicants to risk of inhuman and degrading treatment or torture and to refoulement (being sent to a place of danger and persecution).

The case is complicated in many respects—much of it turned on a painstaking reading of the EU Visa Code. But in one respect the case was rather simple: it asked, plainly, whether the European Union must hear the claim of those in danger or, instead, can turn people in need away. The ECJ in that case decided that the family’s submission fell outside the scope of EU law and, accordingly, that the protections imagined by the EU Charter did not apply. It decided the issue on little more than a pronouncement of jurisdiction. Any question of jurisdiction is precisely a question of who gets to speak, who gets to tell the story. If the court could not hear the claim and rule on its merits, the family, too, could not speak. Here, the ECJ ceased to hear; it ended that story.

I turn to the case in the book because it offers a warning but also because it offers an alternative. The Advocate General assigned to the case—who tenders a public opinion in advance of the final judgment, aiming to inform the court (without binding it)—interpreted EU law in a manner that required the EU Charter to apply and thus allowed the family to tell their story, allowed European institutions to hear it, obligated them to respond to it. To do so, Advocate General Paolo Mengozzi crafted a narrative. He contextualized; he rendered the family’s fears concrete; he asserted contingency in the ways European law had previously been interpreted; and he asked the court to see the utopian possibility of EU law to protect those who had in the past been failed by it. It was an opinion, in short, that rejected the reified categories of law that so hemmed in the ECJ’s judgment. Instead, from a rather narrow question of visa provision, Mengozzi articulated a systemic critique of Europe’s long-standing failure to address the plight of refugees on the Mediterranean Sea. He sought a new beginning.

You have family roots in the former Czechoslovakia. Did you travel in the EU to accomplish your research, or was your source material accessible online?

I do, and in a sense I did. The material I used primarily was not archival; most were academic texts, all published, or government documents, all available to the public and accessible online. But I will say that I did travel to accomplish this work in a more impressionistic sense. The book, for those who know me, will likely bear the obvious mark of a Czech immigrant to the United States.

And the book is indeed a product of migration, of bouts with homesickness and longing, questions of identity and meaning—struggles to come to terms with places and times that are always slipping away. I share these hopes for European law, in part, because I have inherited a set of commitments to Europe that come from seeing it, at once, from near and far—first, as a Central European and then as a Central European who grew up and now lives here in the U.S. but still holds on to the memory of family and history abroad. My memory is, as you say, of Czechoslovakia—a multinational state that no longer exists, whose political past is entwined with tentative ambitions of a just and free Europe, at once in thrall and skeptical of sovereignty, of the market economy, at once in the heart of Europe and alienated from it. A critical eye sees, I think, in light of the ambivalence of these two perspectives—of being inside and outside, and I hope this book might contribute something of both.