The Postnational Aspirations of European Law

Authors

Paul Linden-Retek

Document Type

Article

Abstract

This Essay begins from a particular quarrel over the interpretation of the German Federal Constitutional Court’s PSPP judgment of May 2020 to open onto questions of how to conceive political freedom beyond the nation-state, about the structure of postnational constitutionalism and its purposes, and, finally, about the role of courts within that structure and in light of those aspirations. In arguments defending the Court, an influential strand of constitutional theory, in this Essay represented by the intervention of Ulrich Haltern, continues to channel assumptions that constrain thinking about Europe as a postnational legal order. Assuming that political freedom is essentially a self-referential articulation of identity, this theory conflates democratic self-authorship with the pursuit of control (Part I). Assuming that constitutional legitimacy must trace the social embeddedness of law, it neglects the process by which constitutionalism and society alike respond critically to change and the possibility of reform (Part II). And, finally, assuming that courts, as legitimate institutions, must channel the voice of the popular sovereign, it sees little possibility for them to reframe the context in which that voice understands itself to speak and be heard (Part III). In considering these conflations in light of contemporary critical theories of freedom and reification, the countervailing perspective offered in this Essay is that questions of political accountability—for what and by whom—are questions that cannot in fact be settled by law’s authors alone. If the conception of self-authorship in Haltern’s legal culture maintains that “the rules are our own when we hold ourselves accountable,” a postnational legal culture, a legal culture with postnational aspirations, believes we hold ourselves accountable when we affirm that the rules are not merely our own. That constitutionalism must not ignore the social embeddedness of law does not mean that constitutional order cannot interrogate those social foundations with a mindset of critique. This Essay’s conclusion is that fidelity to social legitimacy and the project of democratic self-authorship is not in tension with this possibility but requires it.

Recommended Citation

Paul Linden-Retek, The Postnational Aspirations of European Law, 72 Buff. L. Rev. (2024).
Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol72/iss5/8