Journal of International Relations and Development

Volume 3, No. 1 (December 2000)

 

Europe's Other: European Law Between Modernity and Postmodernity
Peter Fizpatrick and James Henry Bergeron (eds)

(Aldershot, Brookfield USA, Singapore, Sydney: Ashgate Dartmouth, 1999, 259 pp., hbk. ISBN 1 85521 887 9)

This book addresses the most fundamental puzzle confronting those seeking to understand and explain European integration. It is unique in its attempt to show the European Union (EU) from a completely new angle. However, it does not uncover any new truths about European integration. The authors deal with questions, already occupying the minds of many Europeans; nevertheless, nobody speaks about them in the usual academic discussions. It seems that these issues have been hidden in the mass of informative textbooks on European integration and overviews that look at the European Union's achievements through positivist lenses. Perhaps fifty years of European integration were indeed necessary to allow consideration of it from critical, post-structural and post-modern perspectives. Besides politics and economics, the law is the cornerstone of European integration. It shapes and influences all activities carried out at the European and national levels. Despite or because of this, the law is often the most conservative in its academic orientation. The academic proponents of European law seek to (self-) justify it. The time is coming for EU law to be subjected to a sceptical and critical approach, and that the exclusiveness of the integration process which is found in its increasingly focused discrimination should be questioned.

The main discourse of the book is the "Other", which constitutes and rejects "Europe" and its law, but which also assumes its identity. The problem lies in the fact that, in order to be strong enough, the so-called self-identity of Europe needs to be exclusive and different. The concept of exclusion has become intimately linked with maintaining the perpetual motion of integration, in particular with the identity issue. This identity is being deliberately constructed based on opposition to an "Other" — another group readily identifiable as emerging from European history but who, for this purpose, continues to be treated collectively as a negative reference point. The "Other" is defined as the "nation" against which the unified EU law and a common European identity are created and are trying to transcend it. EU law is simply not, as pointed out in the book, an integral endeavour or an achieved whole. The authors extend the "Other" of Europe to those people marginalised by the dominant confines of the law. Europe involves many falling outside, not least to mention the many non-Europeans who reside there, who are politically and economically excluded from the nouvelle Europe. The collection of chapters focuses on "Other voices", heterogeneity and diversity and particularly on other intellectual traditions. The idea of being European in relation to the law leads the authors to extend their analysis beyond the formal borders of EU law. Europeanness sustains not only EU law but also the European Convention on Human Rights, which in a way is a flag of a European nation in relation to a non-European one.uman Hu

The volume is divided into three parts. The first part entitled Between Modernity and Postmodernity examines the intention of EU law to transcend the nation and to create a coherent and autonomous European identity. All three contributors address this in the framework of post-modern critical thinking. James Henry Bergeron in his first chapter An Ever Whiter Myth: The Colonisation of Modernity in European Community Law explores the jurisprudence of the Court of Justice, which hides a complex mythical vision of the European individual. From the legal perspective, the European Communities are often characterised as the "rolling back of the state", and as an entity based on economic liberty and restraint of national laws in favour of the individual. The rise of the individual in European Communities/EU law is linked to the development of case law produced by the Court of Justice and particularly to the doctrines of direct effect and supremacy of Community law. The individual becomes the sovereign subject of the Treaties and thus the Court in competition with the nation-state is intruding on its monopoly. Through the development of the autonomy and supremacy of the Community legal order, the Court of Justice colonises the mythical structures of modernity which characterise national laws.

In addition, Peter Fitzpatrick in New Europe and Old Stories: Mythology and Legality in the European Union explores the question of how the myth of European identity sustains the EU as an exemplary community and nationalism as the pivotal point of the European legal order. The configuration of the law, the myth and nation serves to construct Europe and its laws. Europe "joins" the nation-state to avoid particularisation (particularistic interests) and to become a model of universalism. In this project, its (Europe's) identity is formed as the negative formation — against excluded others. This exclusion is shown in the establishment of the EU's external borders and in the introducing of European citizenship for nationals of member-states only. The rights of EU nationals create a distinct and privileged identity over and against non-nationals. But the similarities between the EU and the nation create a tension, since both occupy the same domain, whether in legal terms or in terms of the identification and loyalties of their citizens. Against the general belief, Fitzpatrick concludes that the tensions are more between competing nationalisms than between national and supra-national levels. And here the law comes into play. The Europeanness of the law subsisting at the EU and national levels, provides a singular place and universal orientation which can accommodate the duplexity and plural location of nationalism in the EU. The author sees all of this as a modernist project. He accepts the idea that legal pluralism infuses the EU legal order, but he does not agree that it (legal pluralism) can alter the modernist orientation of EU law within which pluralism is a way leading to unification

Like Bergeron and Fitzpatrick, Harm Schepel in his contribution on Legal Pluralism in the European Union is concerned with legalist assertions of unity and supremacy. Schepel explores the interaction of EU law with other normative orders and argues against the general view of state law as the only actor in the normative order of society. He lays special emphasis on the mutual dependence and also antagonism between law and administration. To demonstrate that, he examines the operation of law in the EU which shows its pluralist nature. The Court has to engage the courts of the member-states in order to enforce the EU law's "supremacy". A similar ambivalence exists in the interaction between the Commission and non-EU agencies, such as bodies that establish harmonised technical standards. The principle of subsidiarity introduced in the European governance seems to enhance this pluralist trend. The post-modernist notion thus subsists in the co-existence of multiple legal sites for social interaction and struggle at the local, national and international/European levels. It could be said that Schepel's "post-modernist" explanation of European governance is not only very interesting reading, but also more accurate than the totalising myth of EU law.

Schepel's post-modernist view of the legal environment of the EU is challenged in Bergeron's second contribution Europe's Emprise: Symbolic Economy and the Post-modern Condition. He sees the operation of the EU internal market as a defence of modernity in an increasingly post-modernist global political economy. For Bergeron, the contemporary culture and economy constitute the "post-modern condition" within which the EU functions, and not the legal environment. The role of law in this post-modern condition is to stabilise the prime market commodity under the threat from the forces of globalisation and cultural diversity. The operation of the internal market and of its law seeks to reconstitute this post-modern condition as the result of rational planning and political will, rather than the result of wild globalisation. Europe finds once again a way to reshape the external force, as the result of the internal will, and implement cultural change as the constitutional design. Thus, globalisation as a force of nature influences only the "Other", namely the inhabitants of non-Europe.

The second part of the collection discuses the formation of the European identity as a goal of institutional policy. While the preceding contributions deal with the identity implicit in the law and structure of the EU, the authors in the second section describe and analyse the explicit attempt to create Europe, the European and the "Other" through acts of policy. Johanne-Inger Sand in the chapter Understanding the European Union/European Economic Area as Systems of Functionally Different Processes: Economic, Political, Legal, Administrative and Cultural argues for the EU not as a unified entity based on singular discourses on integration but as a complex interaction of different discourses. Each discourse serves different functions — legal, political, economic and administrative purposes. They communicate only indirectly with each other, but the message of each should be read within the discursive frameworks of the others. Although the same treaties, texts and processes are referred to in these discourses, the way in which these texts are used creates systematic gaps and incoherence. The author presents, as a case study, two mutually independent systems — the EU and European Economic Area. The EU legal order as a discourse of effective, unified and supreme law serves to conceal this incoherence of the policy process.

Valsamis Mitsilegas in the chapter Culture in the Evolution of European Law: Panacea in the Quest for Identity shifts the discussion from national cultures to the possibility of European culture. For Mitsilegas, culture is bound up with processes of differentiation and the creation of identity happens through the exclusion of others. In this sense, culture is a code serving to identify the "Other" while highlighting the attributes which constitute "Us". Before the Maastricht Treaty, culture was subordinated to the economic rationality inherent in the legal concepts of non-discrimination and proportionality employed by EC (European Communities) law. After the Maastricht Treaty, culture takes on a new and positive role, although the new articles (pre)suppose unitary national cultures, which allow regional diversity within nations but offer little to cultural, ethnic or racial minorities within those borders. The key question for Mitsilegas is if this culture will be defined in terms of the European Citizenship privileging the European national over the non-European "Other".

The place of the non-European as "Other" is also discussed by Carole Lyons in her contribution The Politics of Alterity and Exclusion in the European Union. The creation of a (new) European identity, with its exclusion of others from that identity, involves the EU adopting the symbols of the "EU nationhood" such as flags, anthems and cultural policy. Nevertheless, creating of such European uniqueness involves the establishment of a sense of superiority or specialness. Europe has long relied on the fiction of the barbarian "Other". Integration should be an opportunity for education in otherness rather than a perpetuation of exclusion. Still, this privileged identity is shown in EU policies on immigration, asylum and policy co-operation. Lyons argues that these policies contribute to inaccurate perceptions of resident non-EU nationals as somehow threatening the "stability" of Europe. Such policy creates a simple and distinct image of those "others" who serve as a basis for the creation of the European identity. The author sees EU law as the main element of this policy of exclusion and identity formation. Namely, EU legislation and the jurisprudence of the Court of Justice grant rights (e.g. the right to free movement) only to nationals of EU member-states. Non-Europeans enjoy such rights only if they have family ties to "Europeans". The expansion of EU rights through "European citizenship" increases this sense of superiority of Europeans, while the "others" become second-class European residents.

Sionaidh Douglas-Scott in the chapter The Common Foreign and Security Policy of the EU: Reinforcing the European Identity? points out that the adoption of myths and symbols of security and defence establishes a world of "Others" who are seen as political and military threats. Although the competencies of the EU institutions in this area remain rudimentary, the symbolic effect of introducing the CFSP (Common Foreign and Security Policy) is outweighing its institutional and political force.

In the last section the analysis of identity is extended beyond the borders of EU law and reflects the role of European human rights in formation of the European identity. These contributions are based on case studies. Some basic data and figures help to expose the realities and complement the (more theoretical) thinking about the creation of the European identity. Laws on immigration, asylum and the policy of protecting human rights are definers of what European nations are prepared to allow. Sarah van Walsum in her article Foucault and the "Illegal Alien": National Identity as a Focus for Distinction and Control explores the implications of recent changes in Dutch immigration law, which dramatically extends the power of the state into the intimate spheres of marriage and birth. The underlying reason was to establish control over illegal residence. The definition and legal exclusion of the "illegal alien" affects the non-European, but also generates a realignment within the whole Dutch population which has nationalistic or even racist implications. On the other side, Thomas Spijkerboer in his contribution Querelle Asks for Asylum presents in a very original way the question of unambiguous sexuality, which enters into the "European" self-conception of the nation. He uses a Dutch court decision on a gay asylum-seeker from Russia as an example, and Fassbinder's film Querelle as a parallel scene. Spijkerboer develops the thesis that the recognition of certain gays and lesbians as members of a persecuted social group qualified as refugees makes the presumption of clear and univocal sexuality. A similar critique of dualist reductions is also used by Kathleen Moore in her chapter on Legal Pluralism in Britain: The Rights of Muslims after the Rushdie Affair. The Rushdie affair demonstrates how Muslims in Diaspora constitute themselves around the legal concepts and rights of the dominant community. These acts of legal self-identification and resistance reshape ways of thinking within Muslim communities. For Moore, the restrictive duality of the West and East, Europe versus Islam, etc. hides the reality of differentiated and heterogeneous British communities as well as the dynamism of the processes of redefinition of these communities. Concluding the collection, Chrisztina Morvai in the contribution The Construction of the Other in the European Human Rights Enterprise: A Narrative about Democracy, Human Rights, the Rule of Law and My Neighbour Uncle Blaze critically narrates her experiences at the centre of European human rights law. She says that the European Commission of Human Rights is a bureaucratic institution deeply involved with its own composition, internal hierarchy and efficiency. It shows little concern for poor or disadvantaged people who make e.g. applications concerning human rights abuses in the language of real life instead of the language of law. They become the "Other" of European human rights as a legal enterprise.

The question "What is Europe?" has long been a difficult one. In a way, it is easier to define what Europe is not rather than what it is. Yet the term "Europe" has tended to be used as a shorthand way to denote a sense of identity. Identity is itself a notoriously complex issue, as it depends on both self-perception and the views of others to secure legitimacy. Still a sense of "Europeanness" necessitates transcending these other identities and asserting an identity at a higher level. At the same time, it raises the question of whether tension is involved for an individual or community in possessing multiple identities. This is a pertinent issue for Europe at the present time as there are fears within many countries that national identity could be lost amid the process of political and economic integration.

To summarise, the book makes very interesting reading and is highly recommended to all those interested in the state of affairs in the European Union. Many readers will be surprised. They will detect quite a different picture of Europe to what they are used to. Compared to positivist writings on European integration that uncritically advocate it, this book presents a fresh perspective. The reader will find a lot of new ideas, ways of thinking and interpretations. Although he/she might not agree with some statements or conclusions, he/she must admit that our knowledge of the EU and the way of thinking are very Eurocentric. This book opens up new doors in the study of European politics. Considering that a large amount of the literature has been developed when exploring the concepts "modernity" and "post-modernity", the authors make no attempt to exhaustively defend any particular interpretation. The variety of concepts may leave the reader in difficulty if seeking to find the common denominator of the discussion. Nevertheless, this book does offer new angles on European politics. The language of some chapters is very intensive and unusual, full of inversions. In any event, the book is a worthy read. Compared to some other books on the EU, the book presented is more demanding since it requires both a good knowledge of European law and modern and post-modern political thinking, which is a rare combination. Ultimately, readers interested in different aspects of European integration will be glad to have found it.

Reviewed by Irena Brinar.