[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Giovanni Piccirilli reviews Framing the Subjects and Objects of Contemporary EU Law (Samo Bardutzky & Elaine Fahey eds., Edward Elgar Publishing 2017)]
–Giovanni Piccirilli, Assistant Professor of Constitutional Law, LUISS Guido Carli, Rome
The debate on the current status and the prospects of European integration has been more vivid than ever in the last few months, considering that several fundamental aspects of the European project are undergoing deep transformations, if not real crises.
The deepest economic crisis in EU history harmed its output legitimacy, which for decades constituted one of the main points supporting continental integration. Even its input legitimacy – its aspect related to democracy – proved to be at a serious impasse: every election in the last 12 months (in Austria, France, the Netherlands and the UK) was dominated by the fears of anti-European (when not xenophobic) parties[1]. Further, institutional reforms democratically passed in some Member States in Central and Eastern Europe are creating dangerous threats to the rule of law[2]. Finally, the post-Brexit shock, the unprecedented decision of a Member State to leave the Union, dismantled the grand narrative of a relentless progression of continental integration.
These disruptive trends not only are putting into question the endurance of the integration project as we are used to knowing it, but also at the same time require an effort to analyze possible deficits, inconsistencies and failures of the legal framework underpinning it, that proved it unable to prevent and to promptly react to such dangerous criticalities.
In such a troubled scenario, a new methodological platform to investigate and (possibly) understand the current condition of EU law has been proposed in the recently published collection by Edward Elgar, edited by Samo Bardutzky and Elaine Fahey, entitled Framing the Subjects and Objects of Contemporary EU Law.
The aim of the collection is to
capture and analyse […] the transformations, crises and the external/internal nexus of EU law[3]
by answering to the following fundamental research question:
whether the logic, the nature and reach of EU law and policy can be persuasively captured by investigating its subjects and objects[4].
Tackling legal topics with specific attention to their subjects and objects (or highlighting the underestimation of their potentialities) seems to be typical of comprehensive reconsiderations of legal systems from their bedrocks, as a way to find new narratives and different understandings of their components and protagonists. A few years ago, a framework for a wide-ranging new theory of judicial review and constitutional interpretation exactly centered on the identification of subjects and objects of (US) constitutional law was proposed by Professor Nicholas Quinn Rosenkranz in two correlated essays published in the Stanford Law Review[5]. Even though the context and the methodology were different (and not recalled in the book under review), it is interesting that Rosenkranz also started from subject and objects to re-interpret a foundational decision of the US Supreme Court and its impact on the evolution of the legal system. Similarly, shortly after, Joseph Weiler used an analogous point of observation to suggest a new reading of the of the European Court of Justice in the case Van Gend en Loos[6], concluding with a general reconsideration of its relationship with the traditional understanding of democratic legitimacy.
In light of these premises, re-discussing, today, what has to be considered the subjects and objects of EU law implies a wide reflection on both its legitimacy and its field of application. And this is the scope and the main merit of the book at hand.
There is a specific reason why an analysis focused on subjects and objects can bring fruitful findings with regard to EU law. In the end, the EU found its novelty in identifying who its subjects were ever since its foundational decisions in the 1960s. Its autonomy from (traditional) public international law can be identified in considering individuals as subjects of European law as much as Member States. The book encourages us to go beyond this understanding, this kind of “original framing” of the subjects of EU law. Inspired by Althusser’s model of interpellation, it claims that together with Member States and their nationals (now full-fledged “citizens” of the EU), any person or entity “defined and recognized” by the authorities has to be considered (ie constituted) as a subject of law beyond the actual condition of bearing rights and duties. This means that the subject-object dialectic considers every “knower”, interpreter and “understander”, so possibly including even third-nationals, depending on their status as asylum seekers, residents, workers, primary caregivers etc., as well as local government authorities and NGOs.
This Foucauldian perspective to EU law may be helpful in reconciling the multiple “subjectifications” that are provided to the same individual by both national and EU law, with overlapping procedures and integrated regulation possibly contradicting one another[7]. Hence, subjects and objects are seen as in a circular relationship, so that they are not reciprocally “disengaged”. The book describes the trend of enlarging the number and the categories of subjects; and a key role in this trend has been played by the CJEU that also in this perspective anticipated the evolution determined by the treaties’ reforms.
The collection is based on a strictly coordinated methodological platform. Each of the four parts has been constructed on the basis of a grid of questions (that is attached to the introductory Chapter). This choice ensures a degree of consistency that is uncommon in edited collections, especially when the contributors belongs to different fields of specialization (European, international and constitutional law, legal theory), and facilitates the reader’s understanding of the development of the methodological proposal. However, some of the questions included in the lists sometimes sound like rhetorical ones, or seem to be considered as instrumental steps in corroborating and confirming the normative construction of the normative thesis.
Crucial for grasping the research targets is the introductory chapter, written by the editors, which anticipates the Part I of the book, where the theoretical framework is presented.
Part II explores the most dynamic dimension of the relations between subjects and objects, showing how in some crucial case studies (such as human rights, local government, status of third-country nationals and NGOs) no sharp lines can be drawn, and the same item might witness a transformation from mere object to subject of law, and vice versa.
Part III delves into the relationships between the European Union and the “others”, looking at the legal personality of the EU in international law and reciprocally at the role of third countries in EU law; the standing of third-countries’ persons (both natural and legal); and the effects on cross-border trade relations.
Part IV tests the findings of the first three parts on the current challenges to continental integration. Interestingly, the main point explored deeply is whether the systemic incertitude of the recent period has to be considered the sum of multiple crises (plural) or, conversely, as the result of a unique crisis (singular), and various are the proposals for identifying what could be the task of legal scholarship in guiding the general public to safer zones.
The result seems to be of interest for several (and different) readerships. EU lawyers will find a proposal for a new methodological approach to the discipline. (National) Constitutional lawyers will receive good arguments for replicating a similar theoretical platform at the domestic level. Public international lawyers will witness a new way to identify the specificity of EU law and its approach to third-national subjects. In sum, each of these audiences will find its own point of interest in the book, in particular in the re-reading of landmark cases such as Pringle or Kadi and their ‘translation’ in the subject/object dialectic.
The critique that can be levied probably regards the complexity of some crucial passages and the overabundance of the methodological hints in particular from Part I, which may overwhelm and confuse the reader (just to make some examples, suggestions encompass Aristotle to Feyerabend, Habermas to Kymlicka). However, entangled challenges (like those that the EU law is facing nowadays) require elaborated answers. Also, because of the variety of the authors’ backgrounds, this book may not result in the most fluid companion for the reader, but its density and its provocative approach timely contribute to the investigation of the evolution of EU law in a moment in which it is in a desperate need of new light to be casted on its future.
Suggested Citation: Giovanni Piccirilli, Review of “Framing the Subjects and Objects of Contemporary EU Law” (Samo Bardutzky & Elaine Fahey eds., 2017)”, Int’l J. Const. L. Blog, Sept. 19, 2017, at: http://www.iconnectblog.com/2017/09/piccirilli-on-framing-the-subjects-and-objects
[1] The editorial of the last issue of European Constitutional Law Review (Volume 13, Issue 2, June 2017, pp. 207-220) starts by recalling the definition of 2017 given by the New York Times on the last 13 March as “Europe’s year of political reckoning”.
[2] See in particular W. Schroeder (ed.), Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation (Hart Publishing, 2016), and C. Closa and D. Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union (CUP, 2017).
[3] See p. 2.
[4] See p. 1.
[5] N.Q. Rosenkranz, ‘The Subject of the Constitution’, 62 (2010) 5 Stanford Law Review, pp. 1209-1291, and ‘The Object of the Constitution’, 63 (2011) 5 Stanford Law Review, pp. 1005-1069.
[6] J.H.H. Weiler, already in ‘Revisiting Van Gend den Loos: Subjectifying and Objectifying the Individual’, in 50th anniversary of the judgment in Van Gend en Loos, 1963-2013: Conference Proceedings, Luxembourg, 13 May 2013, edited by A. Tizzano, J. Kokott and S. Prechal (Office des publications de l’Union européenne, 2013), pp. 11-22, and then in ‘Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy’, 12 (2014) 1 International Journal of Constitutional Law, pp. 94-103.
[7] A similar approach was proposed by M. Dani, ‘The Subjectification of the Citizen in European Public Law’, (2015) EUI Working Paper LAW 2015/02.
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