Postnational Constitutionalism Europe and the Time of Law

At a time when the integration of the European Union's peoples through the rule of law is faltering, this book develops a critical theory of postnational constitutionalism. Today, widely held conceptions of EU law continue to mislead citizens about the nature of political identity, sovereignty, and agency. They lose sight of a critical idea on which post-nationalism depends-that constitutional self-authorship is narrative, and the polity is a subject whose identity, history, and legacy are still in formation. Absent this vision, EU law reproduces crises of legitimacy: the depoliticization of public life; emergency rule by executive decree; a collapse of solidarity; and the rise of nativist movements. The book diagnoses this impasse as the product of a problem familiar to modernity: reification--a process in which social and historical relationships are misattributed as timeless relations among things.

Reification's shrinking of social dilemmas, moral principles, and political action to narrow perceptions of the present explains law's role in perpetuating crisis. But this diagnosis also points to a remedy. It suggests that to sustain the emancipatory potential of EU constitutionalism we must recover law's relationship to time. Postnational Constitutionalism: Europe and the Time of Law proposes a temporally-attuned constitutional theory with principles of anti-reification, narrative interpretation, and non-sovereign agency at its centre. These principles reimagine essential domains of constitutional order: social integration, constitutional adjudication, and constituent power. Spanning various bodies of EU jurisprudence, the book devotes particular attention to migration and asylum--struggles where questions of solidarity, law, and belonging are most generative and acute.

Paul Linden-Retek, Associate Professor of Law, University at Buffalo School of Law

Paul Linden-Retek is Associate Professor of Law at the University at Buffalo School of Law. He writes and teaches in the areas of comparative constitutional law, critical legal theory, and international law, with an emphasis on European Union law, international human rights law, constitutional theory, and refugee and asylum law. Linden-Retek has previously taught at Yale University and held fellowships at the Schell Center for International Human Rights, Yale Law School, and the Jean Monnet Center for International and Regional Economic Law & Justice.

1. Introduction: European crisis and constitutional time
PART I: Solidarity
2. Post-nationalism, solidarity, and law: The limits of constitutional patriotism
3. The anti-reification principle: Fallibilism and narrative thinking
PART II: Constitutional Interpretation
4. Fragments of European law: The 'presentist' conceit of legal coherence
5. Narrative interpretation: 'Analogy' and the post-national imaginary
PART III: Constituent Power
6. Reconstructing popular sovereignty in Europe: Pouvoir constituant mixte and its discontents
7. The authority to judge: Pouvoir constituant narratif
8. Conclusion: The 'play of the world'