European Legal Integration as Phantasmagoria: On Jus Commune and Political Theology

Abstract

This paper tries to explore the place of phantasmatic structures in the production of discourses on the past and the instrumentalization of historiography in the framework of the construction of a European identity. During the last decades, in strong connection with European institutional framing, a heterogeneous discourse tries to impose by means of symbolic violence and authoritative arguments its own truth about Europe's ‘Common Legal Past’ in order to legitimize European politics in the field of legal integration. In doing so, it conjures both a shared legal tradition and a paradigm for understanding the status of the legal, the jus commune, a kind of Roman Law, a patchwork of Canon Law and scholar interpretation techniques, that emerged in the twelfth century and might have been at work throughout Europe as late as the beginning of nineteenth century. What this discourse also brings to the fore is the idea of a common legal culture that has been largely informed by the religious milieu where most of modern legal concepts have been forged. From this point of view this arguments reveal themselves as variations on Carl Schmitt's problematic stand of a political theology. This paper tries to unravel the internal tensions that undermine the discourse and questions its relation to historical truth and the phantasmatic dimension of meaning construction in historical enterprise. On the other hand, it tries to give an account by means of genealogy of the uncanny relation between this contemporary emergence of the jus commune and other legal ontologies of European modernity that presuppose a strong relation between the legal and the religious. In respect to this, I try to sketch the image of the contemporary discourse on the European ‘Common Legal Past’ as a discursive strategy that hasn't dealt with its own idiosyncrasies and proffers a doubtful legal ontology with dubious intellectual links that places it in an history of exclusionist and essentialist conservative thought.