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Why is the space for critical legal engagements within EU law so narrow, almost non-existant?

Critical legal engagements openly question the underpinnings of EU legal thinking showing how its inner logics reproduce various forms of inequalities and power asymmetries.

They don’t primarily seek to reform the law. Their main focus is laying bare the ideological foundations and effects of legal modes of interventions, and how doctrines, rules, techniques and discourses enable the reproduction and the legitimization of various forms of hierarchies. They do so even when legal frameworks and discourses seem to promote ‘emancipatory’ goals. Instead of arguing for ‘more’ or a ‘better application’ of the law, they ask whether and how the law and its underlying logics are part of the problem in the first place. From these engagements, other, more emancipatory ways of understanding and practicing EU law may and often do emerge.

Collective and individual initiatives in EU law that challenge the dominant narratives of course exist (see, for instance European Law Open here) but they are still far from being representative of the ways in which EU law is taught and researched in the vast majority of law schools. At best, these methodological moves are seen as ‘interesting,’ sometimes ‘exotic’ and ‘refreshing,’ but almost never as ‘indispensable’ for understanding the inner operations and the nature of EU law.

Moreover, many of these critical engagements have a tendency to under-theorize the concept of ‘power’ and very often fail to engage with concepts such as race, gender, the center-periphery or the Global South/ Global North divides.

So why are critical approaches marginalized in EU legal scholarship and teaching?

Part of the answer is that, overall, the EU legal field still largely thinks of itself as technical and ‘self-contained.’ In part this has to do with how faculties in continental Europe enforce the distinction between law and other disciplines (apart from economics which is well entrenched in some EU legal subfields such as competition law). In addition, EU law is still embedded in a largely progressive narrative of EU integration and the notion that the EU legal project is inherently progressive and normatively good. Within this context, some argued that EU law has embraced an ‘empty functionalism’ wedded to technical expertise which is artificially isolated from the evaluation of underpinning normative choices and visions.

But these structural arguments don’t fully explain why critical approaches are so marginalized.

For some, critical legal thinking is the same as ‘moral relativism’ which is normatively problematic. For others, it denotes a lack of ‘scientific rigor’ and ‘objectivity.’ Critical legal thinking is often boiled down to the statement that ‘all law is politics’ which is, of course, far from representing the richness of critical legal traditions.’Others argue that critical legal arguments can be and are easily co-opted by conservative forces that can use them to undermine the EU and its many material and legal benefits.

The reluctance to make room for critical thinking can also be explained by the fact that the dominant narratives around EU law are perceived to be strongly attached to EU scholars’ professional identity. Critical thinking becomes synonymous with a largely unwanted process of transformation, potentially painful self-reflexion and the loss of professional identity. Others, argue that there is no real value in teaching critical thinking to students who mostly end up practicing law. As a colleague once put it “isn’t critical thinking a privilege for few legal scholars from elite institutions?’

Finally, scholars described the proximity and the porous borders between  EU legal scholarship and EU institutions which all sideline critical legal engagements, and fuel scholars’ “enchantement” with the EU. Several mutually reinforcing logics are at play: EU legal scholars tend to strongly identify with the project of EU’s integration, while EU’s funding influences scholars’ research agenda, and EU institutional lawyers (e.g. Commission’s lawyers, référendaires to the ECJ) often intervene in academic settings shaping how future generations of EU lawyers understand what the purpose and limits of EU legal project are.

And all of the above, of course, determines the work of “gatekeepers”: what kind of work they value, who they hire, publish, encourage, mentor, and give resources too. There is inevitably a reproduction of certain dominant ways of thinking and teaching EU law.

None of these arguments are quite new or specific to EU law.

So why should we then foster critical legal thinking in EU law?

To start with, feminist and other critical (legal) scholars have repeatedly problematized the notion of ‘truth’ and ‘objectivity’ within (legal) knowledge production: they showed that all knowledges are necessarily situated and therefore partial. They are all embedded within and don’t exist outside broader social contexts and power structures.

Saying this doesn’t necessarily undermine the ‘scientific’ nature of legal research. It means that the knowledge produced is only one way of describing and understanding the world, and that the person producing knowledge through critical methods is explicit about this, and is aware of it. This realization drives constant re-finement and re-adjustments of methods and legal arguments

More fundamentally, we need more critical legal engagements within EU law, because there is mounting evidence that the EU law is in part responsible for the high levels of inequalities that persist and the reproduction of various intertwined power structures. For instance, some have uncovered the ideological underpinnings of EU citizenship law that privilege economic rationality and perpetuates discrimination based on class, others the pervasiveness of the market logic in private law, the links between economic (neo) liberalism and authoritarianism, how the EU economic governance undermines and re-configures the notion of  ‘social Europe’ in a context of austerity measures becoming entrenched within EU economic governance, or explored the legal architecture of money. Elsewhere, scholars showed what EU lawyers could learn from critical theory.

Some showed how colonial legacies are perpetuated within EU law, its developmental and migration policies and its social policies—among others– and argued that EU legal studies  need to be decolonized. A collection of essays embedded landmark EU cases into broader social and political contexts. In my own work I’ve argued that even ‘progressive’ consensual gender equality measures such as ‘work-life balance’ end up legitimizing the neoliberal shift in the EU while reproducing inequalities based on gender, race and class. In my current projects and teaching, I look into how EU anti-discrimination law legitimizes labor deregulation and neoliberal reforms which harm precarious workers, especially women and people from poor and marginalized communities, and shapes the contours of racial capitalism in the EU.

What all these interventions have in common is that they interrogate the dominant legal framings in the field, and show how EU law is inextricably enmeshed with the (re)production of hierarchies, neoliberal policies and of differentiated and vulnerable subjects of law.

But these critical interventions, especially those taking seriously gender, race, ethnicity, class etc.. are still few and rare, they are very easily overlooked within the field, and there are still also so many unexplored topics.

For instance, there is no established project in law of systematically questioning EU’s colonial origins and how these dynamics shape current EU legal structures. Most of the textbooks don’t even mention the colonial past, let alone how it shaped and is still shaping the EU, our interpretations of what the EU is, its ‘founding myths’ and how it operates on the ground. While political scientists, historians and sociologists have studied some of these dynamics, for the most part, EU legal scholars seems uninterested in, and silent on the topic.

Likewise, while the study of gender inequalities is prominent in EU law, the rich field of EU anti-discrimination law is to a large extent still under-theorized and. It is quite self-contained, doctrinal and wedded to existing legal structures and discourses of EU’s progress. The ways in which the field enables and legitimizes various economic projects, such as neoliberalism, or tends to undermine a thick understanding of gender justice are rarely explored in depth.

Finally, there is no systematic legal analysis of the role EU law plays in enabling and accentuating the ongoing climate crisis, while  simultaneously producing injustices and inequalities. One potential avenue for research on this front would be to explore how EU law produces EU’s ‘racial sacrifice zones’ and how it contributes to racially, ethnically marginalized communities bearing the brunt of the climate crisis as the result of EU law’s operation.

Overall, failing to seriously embed critical legal approaches into EU legal scholarship produces partial and homogenous scholarship. This is often a form of privilege of those whose lives are not directly shaped by the many injustices and many forms of violence that EU law makes possible.

In the face of ecological, social and economic crises which affect us all at different levels, critical legal thinking is an exercise in truth telling, a daily practice of intellectual humility which are both the preconditions for any reconstructive projects that seriously engage with the notion of justice.

I’m very grateful to Diamond Ashiagbor, Fernanda Nicola, Gráinne de Búrca, Floris de Witte, Maria Weimer, Andrea Leiter and Peter Lindseth for their feedback on previous drafts.

(Photo: Lukáš Vaňátko)