Abstract
AbstractThis Article aims to reimagine post-national legal solidarity. It does so by bringing debates over Habermasian constitutional theory to bear on the evolving use of mutual recognition and mutual trust in the EU’s Area of Freedom, Security, and Justice (AFSJ), particularly in the context of European asylum law and reforms to the Dublin Regulation. Insofar as critiques of Habermasian “constitutional patriotism” apply to the principle of mutual trust, the Article suggests why post-national solidarity requires fallibilism and dynamic responsiveness that exceed formalized rules of forbearance and respect.On this revised view, legal solidarity guarantees a particular form of adjudication through which individual litigants in a particular case challenge the transnational structural conditions that give rise to individual harm. Because it acknowledges that violations of individual rights are always potentially or in part the result of a collective systemic failure, this conception of solidarity restores meaning to the transformative “transfer” of sovereignty that post-national law had promised. In the field of asylum law, I detail how this application of solidarity would offer a much-needed corrective to structural imbalances in the existing Dublin regime. I conclude with reflections on the principle’s application in additional fields of EU law, as well.
Highlights
University at Buffalo School of Law, Buffalo, New York *Corresponding author: paul.linden-retek@yale.edu (Received 26 June 2020; accepted 16 September 2020). This Article aims to reimagine post-national legal solidarity. It does so by bringing debates over Habermasian constitutional theory to bear on the evolving use of mutual recognition and mutual trust in the EU’s Area of Freedom, Security, and Justice (AFSJ), in the context of European asylum law and reforms to the Dublin Regulation
The state that means to be “trusted” evokes solidarity under the expectation that its own system of law can be affirmed by another as legitimate. Mutual trust in this sense expresses the form of commitment we find in Habermasian constitutional patriotism
Assessments of mutual trust might in some instances create pressures toward explicit harmonization of laws but more broadly might, in the long-term, promote “judicial communication, mutual learning, and approximation and trust.”[56]. Solidarity here acquires a dynamic insofar as it depends on the adjudication and enforcement of each particular case—with the understanding that each case attests to the broader systemic legitimacy of another’s rule of law and, in turn, bears in some way on the interpretation of one’s own legal commitments in the home jurisdiction
Summary
Since Robert Schuman’s declaration that Europe shall be built through concrete achievements of “de facto solidarity,”[7] solidarity has been a central, if tenuous, feature in the European Union’s legal discourse. Consider how the proposal by the European Commission to reform the Dublin Regulation concerning responsibilities to lawfully examine asylum claims serves, merely to retrench the system’s fundamental inequality toward peripheral EU states and to penalize asylum seekers in the interests of preventing their secondary movement.[21] And consider—at the height of the Eurozone crisis—the legalistic invocation by Member States of the “no bailout” clause in Article 125 TFEU as grounds to refuse the needed restructuring of Greek sovereign debt and to affirm the morality play of “‘lazy Greeks” failing to repay hard-working “northerners.”[22] This forgets, the structural factors driving the crisis, including the risk eagerly assumed by the northern banking sector financing southern loans,[23] but much more importantly the significant leniency historically afforded under EMU budgetary rules to larger, more powerful states at Europe’s core.[24] These shortcomings suggest the degree to which the use of solidarity in EU law remains in essential ways subordinate to existing, predominant interests—whether national or supranational and systemic—and its rarity and weakness in defending a transformative conception of the common good.[25] the Court of Justice of the EU, after earlier case law that pressed the boundaries of national solidarity’s scope in precisely the ways Somek found questionable, has been chronically unwilling to develop a general understanding of solidarity as a discrete ground for European obligations. Whether this transposition is successful and what it reveals about the ongoing struggles for solidarity through law are the subjects of the remaining sections
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