REJOINDER
Why we stand for a political citizenship
Agustín José Menéndez, Universidad Complutense de Madrid and
Espen D. H. Olsen, Oslo Metropolitan University and Arena, University of Oslo
Introduction
We want to start by thanking the authors of the five review pieces for their detailed and meticulous reading and, above all, for the many highly relevant points they have raised. Reading the contributions, discussing them, and writing this rejoinder, constitutes a wonderful opportunity to think through the themes of the book with the benefit of hindsight. Confronting wise readers is always a trying experience, in which authors have to recognise where their argument is less clear than they thought it was and where the arguments seemed strong and yet they are actually weak.
This rejoinder is structured in two parts. In the first section we consider three themes that emerge with force in two or more reviews. We have tried to organize it in such a way as to provide the reader with an alternative picture of the book, which hopefully contributes to situating it within the European citizenship literature. In the second section, we tackle the main critical points put forward by each of the discussants. We end up by signalling two points made in the book that were not tackled by the reviewers, but which seem to us to be matters to which EU studies should be paying more attention.
General points
Do we get the concept of citizenship right? From where do we take our normative criteria? Is the European Union a state?
A central claim of our book is that European citizenship is not a citizenship status. Such a conclusion is reached on the basis of affirming that citizenship cannot but entail full membership of the political community. Consequently, rights to political participation constitute the core of any citizenship status. European citizenship does not meet this criterion because the centre of gravity of the status is not constituted by political rights (which are weak and ancillary) but by the right to private property and entrepreneurial freedom, as operationalised in the four economic freedoms, including the personal freedom of movement within the European Union.
Several discussants were not satisfied with this claim. They argue that our move is either arbitrary or unjustified. It would be arbitrary because it is based on a stipulative definition of citizenship, in a purely conceptual move, which would moreover reveal our methodological nationalism. Or what is the same, our definition of citizenship would be based on what citizenship is at the national level, a yardstick clearly inadequate to assess the citizenship of a post-national polity as the European Union. But the move could also be seen as unjustified, because we are assuming, instead of putting forward, a specific normative definition of citizenship.
To start with the latter. It seems to us that there is nothing hidden in our commitment to the normative ideal of the Democratic and Social state, linked to the aspiration to realise the normative ideals of democracy, social protection, the rule law and openness and cooperation. This is a daunting task, not least because the socio-economic reality falls clearly behind the ideal, and consequently conflicts between the four pillars of the Democratic and Social State are bound to be many. But besides the fact that it seems to us normatively compelling, we would like to stress a fact which is perhaps insufficiently emphasized in the book, namely, that most Member States of the European Union, through their constitutions, define themselves as Democratic and Social States in some form. So, when asked from where we draw our normative criteria, we can provide a dual answer. On the one hand, they come from normative theory, from thinking in institutional terms and in line with the normative constitutional theory elaborated in the interwar period and, above all, in the postwar period, visible in the work of both Jürgen Habermas and John Rawls. On the other hand, and above all, our normative standards come from positive constitutional law, from the constitutional traditions common to the Member States of the European Union. We would not be inclined to characterise them as objective standards, but as inter-subjectively affirmed standards.
But if that is so, are we not methodological nationalists, applying the standard of nation-state citizenship to a supranational polity as the European Union? The answer is negative for three reasons. Firstly, the defining characteristic of the Democratic and Social state is not that it is a nation-state, but that it is democratic and social. This marks out a crucial distinction between nationals and citizens, as the latter can only be found in democratic polities. Secondly, the regulatory ideal of the Democratic and Social State is not tied to any specific historical trajectory of formation of the political community, but rather to the way in which power is justified. The four regulatory ideals of democracy, social protection, the rule of law and openness define what is and what is not legitimate power. The moment in which a polity wields substantive positive and negative powers, as the European Union does, provides the moment in which a democratic and social citizenship is required, ensuring that those especially and continuously affected by such power are in a position to decide about the uses at which such power is put. Thirdly, we would like to add that while the European Union is a poor candidate as a nation-state, it is a polity that resembles a state very much. True, it is a very peculiar, segmented, and fragmented ‘state’, but still a polity which has a currency and a police border, is in the process of constituting an army, and has started issuing sizeable amounts of common debt. If things stay that way, does it make sense to keep on pleading the sui generis card and claiming that European citizenship should also be regarded as sui generis? In that regard, we want to stress again a point which was insufficiently emphasised in the book, namely the difference between nationalist and ‘nationist’. The latter term (coined by Emmanuel Todd) takes seriously the fact that persons are constituted by the political communities in which they are socialised and educated. Consequently, collective identities matter, but there is no need for us to construct such collective identities on the basis of a mythological and romanticised history of an exclusive political community.
Going beyond the state while remaining politically embedded: internationalism not cosmopolitanism
It seems to us that there is a point on which we are not of the same view of most if not all of our discussants, and that concerns the openness which is to be characteristic of a normatively sound conception of citizenship. The difference, in our view, revolves around the difference between cosmopolitanism and internationalism.
Let us start with what seems to us is a basis of agreement. We are persuaded that membership statuses which do not take seriously the obligations that we owe to all those who are not full members of the political community, be they residents without citizenship, refugees or strangers, are normatively unsound. By the same token, and for even stronger reasons, we are persuaded that the collective identity supporting democratic and social citizenship has to be inclusionary, and not exclusionary. Such conception makes it possible both to discharge the obligations we have towards non-members, including refugees and strangers, but also to avoid the situation in which pre-political identities determine democratic decision-making or, by the same token, avoid them serving as an excuse not to have an open discussion of what we are to do and achieve together. It is on such a basis that we make a very positive assessment of the creation of the European personal status, of what we call the ‘proto-citizenship’ status stemming from the founding Treaties of the Communities and the secondary legislation introduced in the 1960s. This is in particular true regarding the extent to which it has contributed in a decisive manner to defining communities of insurance by reference not to nationality but rather to residence. Community law was not only requiring the assimilation of second country nationals to nationals, but we insist, it re-modelled welfare states on residence, rendering community law as a resource for those workers themselves. By the same token, and unsurprisingly, we find normative promise in the arguments of those who claimed that the formal enshrinement of European citizenship in the Treaties should lead to a reconsideration of the citizenship status, so that it would be liberated from its entanglement with exclusionary national identities. It is against this background that we emphasise certain moves toward unequal citizenship in European law. Those moves go in a direction in which exclusion proceeds not only along national lines, but also along lines defined by, quite frankly, socio-economic class, with Dano as one seminal case.
We are thus, like our discussants, committed to forms of citizenship which are compatible with openness and responsibility towards others. But we hesitate to characterise ourselves as cosmopolitans. This is not out of a nostalgia for something which never existed (and which we would anyway have been against), namely national communities homogeneously organised along pre-political lines. Rather, our doubts spring from the fundamental importance we assign to democratic politics. In that regard, cosmopolitanism has always been ambiguous, and may result, and indeed has been combined with epistocratic, autocratic and other forms of substituting or taming democratic politics. Under the current circumstances, whatever the intentions, this could not but lead to the further strengthening of the force of financial capital(s). Consider, for example, borders, be they physical or constructed purely through legal norms, are not infrequently regarded with some degree of normative suspicion, accepted more for prudential than normative reasons (that is, as a “second” or “third” best, justified on prudential reasons). But can we have democratic politics without borders? A fundamental purpose of political communities is to coordinate actions with a view to achieving collective goals. That requires not only drawing lines between those who are members and those who are not, as Walzer succinctly pointed out, but also and above all, protecting the collective capacity to act from being undermined by those shirking their duties. One scandal after the other (Panama Papers, Lux Leaks, Pandora Papers) reminds us that the capacity to collect taxes with which to pay for collective goods is being eroded by all kinds of financial schemes that involve tax havens. Can the Democratic and Social state renounce on the task of limiting the movement of capital? And can it do it without setting borders to capital movements? The relevant normative question is not whether to have borders or not. The relevant normative question is which borders we have. So we need to look at how we shape borders so that they allow us to protect the very possibility of democratic decision-making without becoming an excuse not to fulfil our responsibilities towards non-members. These are responsibilities which, we would also like to stress, do not require us only to shelter forced migrants when in dire need, but also, and above all, mandates the rich West not to have a socio-economic order and a lifestyle which objectively creates in many countries of the world the misery which forces most migrants to leave their place of origin. In brief, borders are needed, but they have to be porous according to normative requirements. That is, it seems to us, a cosmopolitan view, but so different from the standard understanding of the word that it may be more clarifying to label it as an internationalist view.
The role that the jurisprudence of the European Court of Justice plays and the way it is assessed
Many of the discussants are of the view that we are overly critical of the European Court of Justice. Is that so?
To start with, it seems to us that a comprehensive reading of the book shows that there is an overall positive evaluation of the case law of the European Court of Justice in the 1960s and in the 1970s. Even if there are good reasons to reconsider the interpretation that has been given to some of the leading cases (ambivalences should also be stressed, as we did regarding Van Gend en Loos), we are of the view that the Court managed to make use of its margin of appreciation to contribute to the reconciliation of the goals set in the Treaties. The combined action of legislature and judiciary made it possible for free movement to be socially embedded, with the ‘proto-citizenship’ status laying the ground not only for social, but also for eventual political inclusion of migrant workers. That was rendered compatible with the strengthening, not the weakening of national citizenship, as European integration contributed to rescue the Member States, and, in the process, pre-empted any return to exclusionary national communities and fostered their becoming open and cooperative.
If we pass a negative judgment on the Court, it is on two accounts.
The first point concerns its ‘economic freedoms’ jurisprudence, from the late 1970s to the present, which results in a maximalistic conception of economic freedoms. This, in our view, is incompatible with Member States (and the European Union) remaining Democratic and Social states. The choice is stark but real: if private property and entrepreneurial freedom, as operationalised through the economic freedoms, are regarded as the ‘meta’ constitutional standard in Europe, then it is simply impossible that Europeans keep on enjoying their socio-economic rights as they are promised in their national constitutions and in the Charter of Fundamental Rights of the European Union. If capital can move as it pleases, the level of social protection would end up being the bare minimum required to ensure a sufficiently skilled workforce and to prevent disruptive social discontent. Well before the Covid-19 pandemic exploded, many if not most Europeans were experiencing a socio-economic decline, as in the name of competitiveness welfare rights and public goods were being reduced. That translates into a diminished and diminishing status of citizenship, which explains why many have come to consider migration as an alternative form of social policy. After the Single European Act (1987) and the Maastricht Treaty (1992), the fault cannot be ascribed exclusively to Court. This is so because these two reform treaties codified large parts of the case law. Nonetheless, the over-constitutionalisation of economic freedoms is largely due to the case law of the ECJ and could certainly be drastically reduced were the judges to opt for a less maximalistic understanding of economic freedoms.
The second point relates to the series of cases which the Court itself characterises as dealing with European citizenship. There we distinguish two phases. In the first, the Court was bold. Under the premise that European citizenship was destined to become the fundamental personal status of Europeans, it delivered rulings which seemed to both project social citizenship to the supranational level of government, assuming the progressive emergence of solidaristic bonds across borders (Grzelczyk), and to radically redefine the boundaries of citizenship to allow offering protection to third country nationals (Ruiz Zambrano). In brief, the European Court of Justice assumed that its decisions were making European citizenship both more humane and more social. Then the financial crisis of 2007/2008 hit the European Union badly, and, even worse, asymmetrically. This led to the second phase in the case law of the ECJ. The Court was again bold, but this time in the opposite direction. In the name of judicial deference to the European legislator, the ECJ insisted on ‘economic activity’ being a pre-condition for the effective enjoyment of the European personal status. In this way, the European Court did not only deactivate the Treaty provisions on European citizenship as constitutional standards of review, but actually introduced a dichotomy much more problematic than that between workers and non-workers. This is due to the concept itself. While a worker is not only an economic agent, but also a political agent, at least potentially through trade unions, the economically active is a purely economic persona. But above all what has changed is the context. By protecting workers in a context of full employment, the Court in the 1960s was in line with national constitutions which assigned a central role to work in the process of social and political integration. By making the full enjoyment of European citizenship conditional upon being ‘economically active’, the ECJ fails to offer a concept capable of protecting the growing mass of persons who do not get access to the formal labour market and are left in the no man’s land of the so-called gig economy. Which, it seems to us necessary to add, are in most cases women, not men, because a disproportionate number of those at the very margins of European labour markets, or whose social necessary work is denied recognition as ‘economic activity’, are women. The result is that EU law runs the risk of becoming neither humane nor social.
Specific comments
Martijn Van den Brink
The first point raised by Van den Brink is that we are too negative on the European Union, not least because we attribute ‘too much of the decline of the social and democratic state to European law and politics’. But surely, he adds, ‘national politicians bear at least an equal share of the blame’. Moreover, we are too pessimistic when it comes to assessing the extent to which national social welfare has been eroded by European citizenship.
It seems to us that this criticism assumes a much more clear-cut distinction between the supranational and the national levels of government than we do. Our view is that it does not make sense any more to distinguish neither a ‘European Union’ radically different from its Member States, nor a set of Member States radically different from the European Union. The European Union is the creature of the states, and the more the process of integration has continued, actions that the Member States can take have become ever more heavily conditioned by their membership, not only through the ‘vertical’ influence exerted by the supranational institutions, but also by the ‘horizontal’ forces stemming from the closer relationships with other Member States. From an analytical perspective, though, it still makes sense to distinguish the EU and its Member States, but this has to come hand in hand with the acknowledgment of their deep intertwinement.
If that is accepted, then it is unsurprising that the neo-ordo-liberal turn that the European Union took in the late 1970s and early 1980s was decisively propelled by transformations which took place first at the national level, but were then confirmed and expanded by changes in supranational law and politics. The 1976 IMF intervention in the United Kingdom, the (unexpected) victory of Giscard in the parliamentary elections of the same year, Thatcher’s victory in 1979, Kohl’s accession to power in 1982, Mitterrand’s ‘austerity turn’ (in the cards since 1982 and finally executed in 1983), were all fundamental in the gathering of the European neoliberal transformation (as was the tragic assassination of Aldo Moro in 1978 and the “resignation” of Paolo Baffi as governor of the Bank of Italy in 1979). All of them were key turning points that propelled, consolidated and shaped the wave of change that would result in the move from the common market and the project of a common currency to the single market and the project of a single currency. National changes thus created the conditions for a transformation of supranational law and politics. Still, as Scharpf has pointed, European neoliberalism spread even if there were not many European neoliberal politicians, at least not at first. How was that possible? Precisely because European integration had proceeded far enough as to render states open to be seriously and decisively influenced by changes in other states. While Van den Brink is right to highlight that ‘market’ integration had not reached in the late 1970s the levels it would reach in the 1990s, it had proceeded far enough as to render states much more vulnerable to the decisions that other states took. Think, for example, of Thatcher’s decision to liberalise capital movements in 1979. The decision was strictly speaking a national one. But given the degree of market integration between Member States, it was a step that was bound to affect all of them, and seriously so, strongly pushing them towards adopting the same decision. Capital movements became almost immediately de facto free, and by the second half of the eighties, all governments, including the initially reluctant French government, had accepted to make part of European law a radical conception of free movement of capital, at odds with the embedded liberalism of both the Bretton Woods arrangements and the original Treaties of the European Communities. If our reconstruction is plausible, then, allocating ‘blame’ for the undermining of the Democratic and Social State requires a careful and detailed reconstruction, in which agency, structural forces and the effect of path dependencies would have to be duly clarified.
Are we, none the less, too pessimistic regarding the structural effects of European citizenship on national welfare systems? It seems to us that the real difference between Van den Brink and us regards our definition of what pieces of European law come under the label of European citizenship. In our view, the tension between European citizenship and the social state is not mainly the result of increasing the pool of the beneficiaries of social benefits, but rather of the erosion of the tax bases with which welfare states are funded. It is not only about citizenship jurisprudence and rights attribution, but also about political economy. At the core of European citizenship we find not only free movement of persons, but also free movement of capital. In the absence of a well-functioning system of exchange of tax-relevant data and at the very least a harmonisation of the definition of tax bases, free movement of capital is bound to constrain the fiscal space of the social state. The “indivisibility” of fundamental freedoms reveals its dark side in full.
The second criticism that Van den Brink addresses to the book also concerns what he regards as an undue criticism towards the EU. In particular, he takes issue with our claim that EU decision-making is structurally biased, favouring legislation further realising private property and entrepreneurial freedom, and hampering legislation that corrects markets through the redistribution of economic resources. To prove that we are wrong, he refers both to the anti-discrimination framework in EU law, and the posted workers legislation. Regarding the former, he claims that anti-discrimination law protects vulnerable workers from employers willing to discriminate them. This is indeed correct, but it should also be noticed that anti-discrimination, as regulated in EU law, concerns formal rather than material equality. Moreover, what is at stake is not a socio-economic right, but an individual, subjective civil right, the right not to be discriminated against for reasons of race, sex, religion and so on. This is extremely commendable legislation as it stands, and it goes to the very heart of the Democratic and Social state, yet we would argue that the protection it affords has only a limited impact upon entrepreneurial freedom, if only because any rational entrepreneur would realise that discriminating is bad for business, both because it prevents the company from recruiting the most capable workers and because, in the present socio-economic context—contrary to what was the case at other times and places—it is very bad publicity. So far as concerns the posted workers directive, we are under the impression that Van den Brink neglects that the very phenomenon of posted workers results from the liberalisation of the provision of services. European legislation, in the 1980s and now, both allows companies providing services in another Member States to evade the full application of national labour laws and, having done that, sets limits to the degree to which that escape from labour law can proceed. In other terms: the very fact that posting is accepted implies limiting the unconditional application of the standards fixed by national labour law legislation or by the joint agreement between entrepreneurs and workers. This remains true after the 2018 reform. So that does not seem to us to count as proof of our having stretched our claim too far. Nonetheless, our point is not that regulations or directives that limit private property and entrepreneurial freedom and that envisage the redistribution of economic resources are impossible, but only that they are much less probable than regulations and directives that further realise the project of the single market. This is not disproven by anti-discrimination or posted workers legislation.
Finally, Van den Brink claims that we seem to be willing to ‘have the cake and eat it too’ when it comes to the definition of EU citizenship. In particular, he argues that our definition is an ‘incredibly thick conception’. Provided ‘thick’ is substituted by ‘demanding’, we fully agree. We never pretended to be providing a ‘pure’ concept, but instead, a concept of citizen as part of a democratic theory of law and politics. How could it be otherwise? Why to speak of ‘citizens’ when we mean ‘subjects’ or, at most ‘nationals’? To reiterate the obvious, the moment in which you are subject to the law, but you do not participate in the process through which these laws are decided, you are not a citizen. Other statuses come into play, and the rights attached to them might be precious, as is the case of refugees. But what is it gained by stretching citizenship to cover these cases? On the contrary, it seems to us that much is lost.
Sandra Seubert
Sandra Seubert makes some very interesting comments on the book. We cannot do justice to all her incisive points, so we will focus specifically on those related to the issue of free movement. Her point is that we underestimate the value of free movement as a basic right of EU citizens. We argue that European citizenship has developed toward a form of unequal personal status where certain categories enjoy the full scope of rights and the ability to move across borders and take residence in other Member States, while others do not (specifically the ‘economically non-active’). Seubert’s critique states that the answer to this problem is not to question free movement as such, but to underline the need for European citizenship to be an equal citizenship right that goes beyond the facilitation of some form of market participation. We do agree that to be able to call something ‘citizenship’ in a democratic polity, requires equality of rights for all members of the community. Yet, our point in juxtaposing the cosmopolitan virtue of openness and the issue of social justice in a discussion on free movement is to underline the political core of our argument. We want to stress the point in the book (and concede it could have been clearer) that free movement and the consequences that follow from it cannot be understood without taking into consideration the issue of political community. It is in collective action with others that we participate. Free movement provides the opportunity to cross borders from one welfare community to another, but it is not a political ‘act’. We would argue therefore that free movement is not a good in itself, whereas participating in the democratic life of the polity is. The mobile European may straddle the geographical borders of its member states but remain a ‘Eurostar’ to borrow Favell’s famous phrase, without attachment to the political community.
There is a deeper, perhaps communitarian if you wish, and certainly ‘nationist’ point here: the contextual character of human lives makes communities intrinsically necessary. If there is no community, we are but floating islands in a vast sea. This may be seen as abstract and high-minded, but the point is serious and further relates to the literature on European citizenship. In the book, we criticise the literature for having been too focused either on minute legal details or abstract, normative theorising. We wanted to challenge these limiting lines of inquiry by analysing European citizenship from the cross-disciplinary perspective of EU law and political science. Through this approach, we argue that while free movement potentially enhances the chances of the individual to pursue her life chances in a second country, free movement should be understood as a means to an end, not an end in itself. This highlights why we make the argument, based on legal reasoning, that the four freedoms are seen as indivisible in EU law and politics. Free movement of persons is not unrelated to, say, free movement of capital. Local communities are affected by these forms of mobility through gentrification processes and the ‘gig economy’ where free-flowing capital cannot be curtailed and local or national regulation against is deemed to not be in compliance with supranational law. Seubert’s well-taken point on extra-European migration is linked to this, yet we would argue that the problem of movement for forced migrants is not directly related to the consequences of internal free movement. The migration issue cannot, we would argue, be solved by ‘an open door’ policy, but rather by taking seriously the injustices of the global socio-economic order and division of labour. One good point to start is to consider the socio-economic implications of the Eurozone basically dictating the monetary policy of the African countries that still have the CFA Franc as their currency.
Cecilia Bruzelius
The incisive point of Cecilia Bruzelius on how to conceptualise citizenship in the EU setting is interesting as it goes exactly to the core of why we decided to write the book and the book’s central argument. Bruzelius argues that we fall victim to a form of reification of citizenship, as our definition of it as full membership in a political community relies on the national as a baseline. This is not a surprising reading, nevertheless it is an important one. Bruzelius rightly understands our approach to defining citizenship as ‘a mix of ideal theory and a historically contingent type of citizenship’. It is grounded both in citizenship theory and in the concept of the Democratic and Social state. Yet, we could have made a clearer point in the book on the status of ‘community’ in our definition of citizenship. We deliberately chose not define citizenship as ‘national’. Rather, we departed from the notion (which is not all that uncommon in citizenship research) that citizenship at the core must be understood as a historical and contingent form of membership and rights status for individuals. While this is often used in citizenship analysis to highlight variation in citizenship institutions between different states, it can also address the point that this has at the core been about different types of communities. If we draw the historical lines further back, citizenship was constructed in cities and as forms of membership in different guilds or classes of nobility, to name a few. In other words, our point was to underline that citizenship has a collective component in that the individual citizen becomes a member of a community – as Dario Castiglione so nicely has put it: ‘a community of strangers’. We do not wish to argue that the community should be a ‘nation’, rather that the community in democratic polities is political. This is the benchmark by which we challenge whether European citizenship is ‘citizenship’, or rather a peculiar personal status of rights in European integration. So, we would stress that political communities can take different forms. They can be formed within unitary states, federal states, confederal systems, and indeed supranational ones. We explicitly do not rule out that political bonds could be forged also in the EU but take issue with much of the literature on European citizenship which seems to take for granted that it is citizenship ‘proper’ and that it is by default a form of meaningful political citizenship.
This leads us nicely to Bruzelius’ important reminder not to forget that there is a literature on federal systems and citizenship. We concede that we have not given this literature its due place in the book, as it could have served to contextualise our analysis. European citizenship is multilevel and has federal features. A comparison with other federal systems and their developments as political communities would not have been out of place in the book.
Francesca Romana Ammaturo
In her insightful comment, Francesca Romana Ammaturo, echoes some of the other criticisms of the book as subscribing to a form of, in her words, ‘monolithic view of citizenship’. The answers given to other interventions on the status of the national and national citizenship conceptions also apply here. Yet, Ammaturo makes a further important point: If one sees citizenship as both ‘nominal’ (the given rights and duties of membership) and ‘substantial’ (the actual practices of inclusion and exclusion of different categories of individuals and groups), there is a way out of formalistic conceptions of citizenship. We agree wholeheartedly on this. Yes, we do acknowledge that our definition of citizenship can be read to be closer to the nominal understanding presented by Ammaturo, than the substantial one. Yet, we believe such distinction is important in our book, for our argument, and for future scholarship on European citizenship. We explicitly point out that an aim of ours is to highlight how the law, policies, and politics of European integration affect citizenship practice, yet from the vantage point of political citizenship, as has been addressed previously in this rejoinder. Where Ammaturo makes a very fair point is that exclusionary practices of citizenship can take many different forms. Gender, sexual orientation, religion, and ethnic background are clearly all issues that are used by decision-makers in different states to narrow the scope for individuals and groups to enjoy the full array of rights and freedom that follow from their nominal citizenship. We are very much in favour of expanding the breadth and depth of citizenship studies and to consider all the implicit assumptions that should be challenged by new perspectives – views that have perhaps been silenced by classical democratic theory. Still, we are adamant that this still can be addressed from within our conceptual framework. We should ask what it is that is tilted in favour of the powerful and resourceful in the idea of political participation and democratic accountability. In our critical analysis of European citizenship, we underline that there are tendencies in its development that point toward unequal citizenship, where different personal statuses are not accorded the same equality of rights, for instance to free movement and residence. This is one way of addressing such impasse between formal citizenship and practices of it. Such practice is institutional, yet it is important for us to highlight that we understand citizenship also in terms of individual and collective practice. The very way in which oppressed groups can overcome their oppression in democratic polities is by means of collective action. Such action implies, we think, an understanding of the individual as embedded in a community. T. H. Marshall’s important legacy is to our minds, not his separation of citizenship into different types of rights, but to show how access to such rights were used by groups to argue for proper inclusion in society. Inclusion can only happen through collective action and citizenship, challenging the very idea of the community to ensure that all individuals are included equally. This is the way that historically working-class rights, women rights and gay rights were gained, through the potential of citizenship.
Glyn Morgan
Glyn Morgan is positive but ambivalent about our book. He identifies a realistic turn in our study of European citizenship, at least in comparison with mainstream literature on the subject. That turn however reveals itself to be insufficient, in fact only a ‘half-turn’.
The ‘realism’ of our approach, it seems to us, boils down to our aim at reconstructing and analysing a wider set of legal norms and social practices than most of the literature on European citizenship. In particular, it is our ambition to go beyond formal law, and consider the full set of norms that materially speaking govern European citizenship. We find highly unsatisfactory that the definition of the object of study is de facto left to European institutions themselves. Scholars on European citizenship tend to study what European institutions label as being ‘European citizenship’ relevant. That is in contradiction with the very claim the ECJ has repeatedly made, in the sense that EU citizenship is destined to be the fundamental personal status of European citizens. But if that is so, it is unavoidable that we have to analyse, reconstruct and assess the full set of norms and practices granting rights and imposing duties, and not only those labelled as related to European citizenship in the case law of the court.
It seems to us that the gist of Morgan’s argument is that we have overrated our normative expectations and considerations. We seem to be arguing that the key challenge which the European Union and its Member States have to meet is to build up a European political order that is legitimate; yet, this can only be so if European integration is rendered compatible with a vibrant democratic political life. But, Morgan argues, loses in terms of ‘democratic participation and national solidarity’ are the price to be paid in exchange for stable peace and commercial and regulatory might. In other terms, if a functional polity cannot be a fully democratic polity, why bother? The time for the kind of citizenship we aim for may well be gone. By the same token, the main challenges that Europe faces have little to do with the democratic legitimacy of its institutions, the existence of avenues for the democratic participation of its citizens, or the social solidarity among its residents, but rather with (economic) competitiveness and demography. In other words, we should worry less about the capacity of public institutions to reconcile efficiency with social justice, and more about the chances of European companies to ‘compete successfully in the internet and social media spaces of the global economy’ and about the ability of the European Union to stand up to ‘American and Chinese behemoths’. In Hegelian fashion, Morgan claims that the ‘world geist’ has left Europe and moved to ‘Shenzhen, Bangalore and other places to the east’.
We have three comments on this critique. First, it is interesting to notice that both the European states qua Member States and the European Communities as a whole claim to abide by the principle that all public power has to be democratically legitimated. The level of government at which power is exerted is less relevant than the requirement that power be democratically authorised. We are the first to acknowledge that the institutional design of the European Union (and of the Member States) results in this principle not being properly complied with. But that this is the case not only frustrates our normative preferences, but is also a fundamental constitutional requirement. It is a key element of the social contract, so to say, at the national and at the supranational level. In our view, this is the source of the growing social legitimacy crisis of the European Union.
Second, the trade-off between European integration and democratic legitimation is not supported by the history of European integration. Alan Milward showed quite brilliantly that the original European Communities served as an external enabler, recreating the actual capacity of European nation-states to act in an authoritative manner, and as a result, increasing not decreasing the breadth and scope of the things that could be decided politically and democratically, and not the reverse. If the relationship has been inverted, it is because of the choices taken in the late 1970s, ahead of the technological revolution and the irruption of China as a major economic and geostrategic player. In the fateful year of 1979, not only the European Court of Justice and the Commission favoured a change in the interpretation of the force and authority of economic freedoms, but a new European Monetary System was introduced and Great Britain fully liberalised capital movements, as already pointed out. This unleashed a process of transformation, that would make of the resulting European Union an external constraint on Member State action. Some of the key powers of Member States have not been transferred to the Union as the ‘ever closer union’ would seem to require, but simply enervated and fragmented by new negative powers assigned to the European Union. Consequently, democratic decision making is not possible either at the national or at the supranational level. We insist that the process predates the geopolitical shifts that Glyn stresses.
Third, the full enjoyment of peace and private autonomy cannot be safely guaranteed in a political and democratic vacuum. In historical terms, it seems to us that it is relevant that even an ardent partisan of the liberties of the moderns such as Benjamin Constant conceded this point. The invocation of the Hegelian geist should confirm that rather than disprove it; after all, even if we are only erratic Hegelians, one reason we find Hegel’s philosophy of history interesting is because its driving force is the realisation of liberty (which entails the full consciousness of liberty). We take leave here to claim that we do not see the Hegelian geist correctly understood moving to Shenzen any soon. If we are allowed to quote Heller, an avid reader of Hegel and in more ways than one a Hegelian, ‘liberal authoritarian’ states – such as China – are plagued by contradictions which are likely to become massive liabilities sooner rather than later.
Conclusions
So far, we have dealt with what the discussants explicitly said. But we were also curious about what they did not say. There are in particular two themes which failed to capture their attention, perhaps because we failed to convey our message sufficiently clearly and compellingly. We would like to conclude by revisiting them.
Firstly, we are slightly surprised that our reconstruction and analysis of the transformation of the literature did not elicit much of a response. Perhaps our views were regarded as too introspective, when what really matters are the rights and duties of actual citizens, and not the fortunes or misfortunes of scholars. That is true. Still, it seems to us that the parable of EU citizenship studies is worth considering. Much as is the case with EU studies in general, those working on citizenship are perhaps a trifle too close to institutions. If the Maastricht Treaty did not result in the making of the field, it did radically transform it from a marginal part of EU studies into a thriving subfield. And as we have stressed in this rejoinder, the very definition of the object of study, and even of the agenda of research, is heavily conditioned by the institutions. We are only conscious that our attempt at transcending these boundaries through an interdisciplinary approach was bound to fail. But it seems to us that the best writing on the matter is precisely that which goes off the trodden path of EU studies and injects into the debate standpoints and views which are not those necessarily prevailing in institutional discourses.
Second, it seems to us that one strength of the book is that it stresses the extent to which a proper reconstruction of the (weak) political rights that it confers requires taking seriously the structural democratic shortcomings of the supranational institutional structure and decision-making processes. In particular, we call the attention of the reader towards the substantive biases built into the division of labour between supranational decision-making processes, the growth of epistocratic institutions and decision-making process (which are hard to control, even to be certain that the episteme is actually there) and the gap between formal and actual decision-making norms, as rendered evident by the trilogues in European law-making. None of this ensures the functionality of European legislation, something which accounts for the incapacity of the European Union to deal with major challenges, and the tendency for them to become major crises, and to render unavoidable the persistence of emergencies, where it is much easier that power escapes all forms of control, including, of course, democratic control.