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On the meaning and promise of European Society

Published online by Cambridge University Press:  14 January 2026

Armin von Bogdandy
Armin von Bogdandy*
Affiliation:
Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany
*
Email: bogdandy@mpil.de
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Abstract

The European constitutional navigation of the noughties succeeded to stipulate that European integration had ushered European society (Article 2 TEU). This choice remains underexplored. In light of current European uncertainty, the contribution explores meaning and promise of European society. The concept can counter the Europeans’ incomprehension of their union by integrating their heterogeneous European experiences into one familiar notion. It shows their conflicts as normal and possibly productive, occurring in one society rather than between discrete Member States. It suggests to understand their democracy as a principled struggle for compromise. Not least, European society substantiates the EU’s new principled constitutionalism that goes against excesses of the ‘will-of-the-people’ approach.

Keywords

European societyEuropean societiesArticle 2 TEUintegrationidentityrepublicanismCJEU

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Type
Dialogue and debate: Symposium
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European Law Open , First View , pp. 1 - 18
Creative Commons
Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
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© The Author(s), 2026. Published by Cambridge University Press

1. Subject, theses, and programme

The European constitutional navigation of the noughties succeeded to stipulate that European integration had ushered European society (Article 2 TEU). Speaking in terms of European society is a political choice, ratified by all Member States, not an academic fantasy. This choice remains underexplored.Footnote 1 My contribution explores its meaning and promise in a society-based approach to European law. It does so as part of a broader project, especially with ELO’s focus on the Europeans’ condition.Footnote 2

Many factors shape the Europeans’ condition, one of which is uncertainty around what it means to be a European.Footnote 3 In this light I explore the meaning and promise of the concept European society. It can counter the Europeans’ incomprehension of their union by integrating heterogeneous European experiences into one familiar notion. It shows their conflicts as normal and possibly productive, occurring within one society rather than between discrete Member States. It understands their democracy as a principled struggle for compromise, and evaluates the haggling in Brussels accordingly. Not least, European society substantiates the EU’s new principled constitutionalism, which goes against excesses of the ‘will-of-the-people’ approach to democracy. Indeed, the Commission stated before the European Court of Justice in pleading against Hungary’s anti-LGBTIQ law (which insinuates that such individuals are criminal paedophiles): ‘This is a frontal and deep attack against the (…) European society’.Footnote 4

I start with my understanding of society, law, and the agency of thought (Section 2). Then I elaborate the meaning of European society (Section 3). Though the term is open-ended, interpretation reveals some basic features (Section 3.A). Those features will be solidified by insights from other fields (Section 3.B). On that basis, I discuss if European society, to truly be a society, needs to shape the identity of its members (Section 3.C).

From that meaning flows promise. I stress society’s potential as a ‘collective singular’ that counters uncertainty on the epistemic level (Section 4.A). Then I show how European society pushes for new understanding attuned to the Europeans’ condition (Section 4.B). European society might also help the Lisbon Treaty’s republican thrust that confronts state-centred, as well as market liberal, approaches (Section 4.C). To calibrate the promise of European society, the article concludes with caveats and open questions (Section 5).

Not all see this promise of European society, in particular those who hold the state or people as the ultimate foundation of law and social order. To them, European society appears to be just more spin from Brussels: ‘Anyone who invokes Europe wants to cheat’.Footnote 5 Some even deny European society’s very existence.Footnote 6 This dispute is part of a general cleavage in European society, of its conflictual unfolding.

2. On society, law, and agency

My thought on European society is that of a German Staatsrechtslehrer in the Hegelian tradition. Hegel helps even though much of his theory is outdated and even offensive to some.Footnote 7 He conceptualised a transformational project: the Prussian reforms after the Napoleonic wars. Those reforms aimed at integrating a vast territory with diverse populations and came with the promise of freedom, progress, and overcoming outdated structures. This recalls European integration, as stated in Articles 1, 2, and 3 TEU. Hegel’s critical edge comes from his ambitious understanding of freedom based on intersubjectivity (and not the liberty of atomised individuals). That is a great key to European society. Article 2 TEU commits to freedom, not just liberty.Footnote 8 Hegel presents true constitutions as achievements of, and frameworks for, mediation. That fits with European society, whose democracy operates via compromise hammered out within its institutions.

As with Hegel, my elaboration is institutionalist. That implies a close relationship between the legal system and other social systems. The basic insight is ubi societas, ibi ius,Footnote 9 conceived as a dialectical relationship between human interaction and its governing norms. When we articulate European law, we articulate European society, albeit only a fragment, but a fragment we show. This idea finds support in sociological theories: Most human interactions occur in social structures; they follow patterns.Footnote 10 Since such patterns often have a legal dimension, the law is part of many social structures, illegal behaviour notwithstanding. The legal perspective is valuable because any legal act (the usual object of study in that perspective) results from intense human interaction. Of course, the law provides just one out of many perspectives on society. It has gaps and distortions, as do all perspectives.

My understanding holds that the law itself (through its actors: judges, legal services, attorneys, scholars) impacts society and even brings forth social change. For sure, the law is subject to other forces (eg politics, economics, religion, culture). But lawyers do have agency.Footnote 11 ‘Integration through law’Footnote 12 is a meaningful proposition as long as it is accepted as just one of many forces. While there is no linear causality from a legal act to the intended social interaction, it has social effects. One cannot imagine 70 years of European political, economic, social, and cultural integration without EU law.

The legal field can bring forth social change by relying on law’s transcendental normativity.Footnote 13 Academic studies that unearth and advance such normativity can be thought of as ‘reconstructive’.Footnote 14 The reconstructive approach fits because the facticity of European society is far from being fully characterised by Article 2 TEU’s principles.Footnote 15 Many identify conditions of systemic exclusion and exploitation.Footnote 16 The legal field’s agency implies its responsibility in such situations.

One of Hegel’s insights is that true understanding requires concepts. Free society depends on some shared understanding,Footnote 17 including some of the society itself. In European society, such understanding is scarce. The most successful understanding of the European navigation presents the outcome of 70 years of integration as one in a kind (or sui generis): different from any other political, legal, or social organisation. That was functional in the beginning, for it helped create something new.Footnote 18

Yet, the understanding sui generis provides is minimal. For decades, academia has been elaborating concepts, mostly on the institutional side: ‘multilevel system’, ‘federation’, ‘Staatenverbund’, even ‘empire’. None succeeded to frame the European academic discourse, let alone the public one. In 1992, European politics introduced ‘union’, a key concept in the US American, Indian, and Mexican constitutional experience.Footnote 19 In Article 1(2) TEU, union (with a small letter u, verbond in Dutch) addresses the entirety of the EU and the Member States, much in the sense of federation.Footnote 20

Academia did not deepen that concept, and it did not take off.Footnote 21 Most members of European society associate the term union with only the Union as in Article 1(1) TEU (with a capital letter U, Unie in Dutch). That capital letter Union is not a concept, but merely a designation. It names an organisation set-up in a few modernistic buildings in far-away Brussels, Frankfurt, Luxembourg, and Strasbourg, busy with politicians, officials, lobbyists, journalists, but few people from the other walks of life.Footnote 22 To the latter, the capital letter Union evokes ever more bureaucracy (rather than an ever-closer union), a site of power far removed from their social worlds. It is something uncertain and possibly even threatening.

To address uncertainty, it takes understanding. In that light, I conceptualise (or theorise, a more fashionable term) European society, as introduced by the authors of the Treaties. Society is a familiar term, but nothing one can touch or see. To reflect our intuitive grasp, it takes concepts.

Conceptualising European society (and thus EU law) is more than a terminological exercise. Since law is a social construct, its concepts fulfil a basic function. Concepts are not simply words that denote something, but establish meaning and create knowledge.Footnote 23 One might even speak of an ontological function: there is no European society without such a concept. Once established, concepts matter. Sociologically, concepts such as society are considered a ‘frame’, ie shared patterns of perception and interpretation that allow social discourse.Footnote 24

That brings us to our role of scholars. Reconstructions of the social world play their own social role. Recall Hegel’s quintessential statement: ‘I am ever more convinced that theoretical work accomplishes more in the world than practical work. Once the realm of ideas (Vorstellungen) is revolutionized, reality (Wirklichkeit) will not hold out’.Footnote 25 This view is widely shared. According to the sociologist Ernest Gellner, ‘[a]t the base of the modern social order stands not the executioner but the professor’.Footnote 26 For the economist John Maynard Keynes, any idea that shaped the world came from an ‘academic scribbler’.Footnote 27

3. On the meaning

While society is a familiar concept, European society is not. I will show its meaning first via legal interpretation (Section A), then continue its conceptualisation via integrating insights from other disciplines (Section B), to conclude with the question whether society, to be a society, needs to be reflected by its members (Section C).

A. Interpretative findings

The meaning of society is open-ended, and so it is in Article 2 TEU. Yet, the term in this provision is anything but indeterminate, some aspects stand firm. Although society in general might be one of the ‘essentially contested concepts’,Footnote 28 a systematic interpretation of the term society in Article 2 TEU yields six clarifying statements. These pertain to the European character of this society (1), its rooting in the territory of the EU (2), interaction and interdependence as mechanisms of socialisation (3), its inclusion of public institutions (4), the preservation of the member states’ societies (5), and indications as to which theories are unsuitable for further refining the concept (6).

First, Article 2 TEU means European society, though it only speaks of society.Footnote 29 The position that the provision refers to the societies of the Member StatesFootnote 30 is defeated by the singular ‘society’. Nor does Article 2 TEU allude to a global (or world) society because it relates ‘society’ to the EU Member States and to democratic values.Footnote 31 Global society, whatever that is, is certainly not characterised by the principles in Article 2 TEU. By now, the term European society has gained traction: in EU legislation, court decisions,Footnote 32 strategy papers, and public talks.Footnote 33 Though these documents have been critiqued, nobody saw them as meaningless for the use of European society.

Second, the reference in Article 2 TEU to the Union and its Member States defines European society with an inside/outside distinction.Footnote 34 Geographically, Article 2 TEU’s European society is centred within the external borders of the Union. Indeed, one finds the concept ‘EU society’.Footnote 35 The claim that this European society is the European society recalls the hubris of US society as the American society. That EU-centredness excludes a pan-European understanding of European society as all countries of the Christian Occident (christliches Abendland), or of embracing the entire European continent.

Of course, the EU-centred European society is not sealed off. Even in our times of geopolitical conflict, no one questions global interdependence, be it political, economic, social, or cultural. European society is also legally embedded in a broader environment, for its principle of neighbourliness (Article 8 TEU) and for being committed to universal values (2nd recital of the TEU Preamble, Article 3(5) TEU). Its borders are not set in stone: the Union is designed for enlargement (Article 49 TEU). Yet, the EU borders, evident and relevant, are there.

Third, society carries some plain meaning. Most people understand that society occurs whenever individuals and groups engage with one another in a framework that stabilises that engagement. This meaning reflects the term’s path. Society comes from the societas of Roman law.Footnote 36 Societas coined a contractual relationship between individuals that engage in a common economic enterprise. In the 17th and 18th century, social contract theories turned the term into a political concept.Footnote 37 They reconstructed the social fabric as a society: a contract-based political enterprise between all individuals (who counted at the time) under one government. In the 19th century, society overcame its legal origin and conveyed the idea of the totality of human engagement, conceived as social interaction or communicative practice.Footnote 38 All people understand that their society reaches beyond direct engagement. Individuals who never meet are fellow members of one society if their interdependence is mediated by a common framework. The Schuman Declaration of 9 May 1950 bet on this to create a new Europe.

Most individuals know they exist as some part of some society, not least by reflecting on unlucky ones like Robinson Crusoe or poor migrants along dangerous routes.Footnote 39 Most understand that society happens in almost all walks of lives. With all the good and the bad of human relations, society is close to everybody’s skin. So if the term European society takes off, it promises a leap in understanding the European union: people will understand to be deeply engaged on a European scale in a European framework that matters to them. Contestation of European politics suggests that many already have that experience.Footnote 40

Fourth, systematic interpretation shows that society in Article 2 TEU is a broad, encompassing term, meaning social totality. It includes all private phenomena: companies, private associations (such as the European Society of International Law), and civil society groups (Article 11(4) TEU).Footnote 41 Importantly, the term European society in Article 2 TEU also encompasses public institutions, be they at the European or national levels. It follows the understanding expressed in Article 16 of the Declaration of the Rights of Man and of the Citizen of 1789 and the European Convention on Human Rights (see Article 8(2) ECHR).Footnote 42 It is this encompassing understanding of social totality that Durkheim and Weber, Luhmann and Habermas, Bourdieu and Butler theorised. Thus, the concept fulfils a role also played by the concept of state (see 4.A.). Society in Article 2 TEU is not to be read via the dualism of state v society. Footnote 43

Fifth, European society does not deny nor dissolve the societies of the Member States. The EU Treaty posits European society, but also the various peoples (Article 1(2) TEU, Article 3(1) TEU), as well as the Member States, to be permanent features of the union. This implies national societies, with their existence protected by all mechanisms of the European federal balance. Many texts speak naturally of European society and national societies presenting them in a symbiotic relationship.Footnote 44 Humans can be part of several societies.

Sixth, leading to the next section, Article 2 TEU’s characterisation of European society marks what theories are unfit for interdisciplinary solidification. They include those which require for a society sharing a common origin, a common language, a common ethnos, a common religion, that members are homogeneous.Footnote 45 Moreover, European society is not to be understood in contrast to community. The old German dualism of society (Gesellschaft) and community (Gemeinschaft) distinguishes society from community via the role of values (for the latter).Footnote 46 With that understanding, society is merely a group integrated by the transactional logic of a market, whereas community is a much tighter group of shared values. The authors of the Treaties follow an opposite logic. Their Economic Community of 1957 was followed in 2009 by a society founded on values of democratic constitutionalism.

B. Insights from other disciplines

In summary, society in Article 2 TEU shows some clear features, it is not an indeterminate concept. Yet, it remains open-ended: what should we understand as engagement, interdependence, or framework? The following proposals rely on various theories that highlight different aspects of European society.

There are many theories of society.Footnote 47 Yet, to conceptualise European society, one does not have to espouse Baudrillard’s, Bauman’s, Bourdieu’s, Butler’s, or any other grand theory as true and only one. Hegel’s claim that grand theory is the mother of all insight is outdated.Footnote 48 Conceptualisation in legal scholarship can proceed by reflecting legal data, using grand theory in an eclectic way: picking and combining without exploring their diversity.Footnote 49 Such an approach responds to European society: it is so complex, multi-layered, heterogeneous, and diverse in its diachronic and synchronic composition that a single theory is likely to be misguiding. That is particularly true for the law that has to serve justice on the ground. I use various theories to grasp various aspects of European society, but also to mediate my understanding with different traditions of thought.

I begin with Georg Simmel, one of the founders of sociology. He theorised Gesellschaft (society) as Vergesellschaftung, that is the process of linking individuals, of social integration, of socialisation.Footnote 50 That conceptualisation, positing a process rather than an entity, makes European society easier to grasp. It also avoids the perils of reification (society as a thing) and anthropomorphism (society as possessing human features: a will, a wish, a fear, a thought).

Moreover, this conceptualisation allows for the integration of insights gained under two key concepts of European thought: European integration and Europeanisation.Footnote 51 Both are process-oriented concepts that articulate what has happened under the Treaties over the past 70 years.Footnote 52 They unearth and synthesise evidence that the Member States (and thus national societies) have integrated and Europeanised. While much is disputed, nobody denies the process as such. It is pacific that there has been, and continues to be, European Vergesellschaftung.

Integration and Europeanisation reflect the same process, but with different foci. Integration is more concerned with the European level: with the establishment of common institutions and frameworks, as well as with the viability, breadth and depth of their operation. Europeanisation rather refers to integration-induced transformations on the national level; for example, the Europeanisation of national law, working conditions on the ground, or how students move between universities.

Since much Europeanisation has come in the wake of integration, European society owes much to political decisions.Footnote 53 Most studies have focused on political decisions (many in some legal form), on public administration (including professional politics), on the economy (much of whose activity is contract based), and on the law as such. So, the conceptualisation of European society can incorporate the wealth of knowledge on how Europe is administered, how EU law operates, and what happens in the internal market.Footnote 54 As such, the concept European society is a further frame to look at such processes. While we have no clear picture of how that all might fit together, it is clear that, for the will of their political systems, national societies have integrated and Europeanised since 1951. The default instrument of that has been EU law.Footnote 55

Yet, there is still a step to take. Integration and Europeanisation articulate an accumulative process. How can that bring about a new phenomenon, such as European society? It is common knowledge that accumulative processes can trigger qualitative change.Footnote 56 For instance, a poor woman might become rich, an agrarian society an industrial one, the strengthening of US federal government transformed the United States from plural to singular; today, the United States has a government. In our case, the qualitative change consists in the emergence of European society. Article 2 TEU’s stipulation of European society coins an evolutionary achievement.

How convincing is this rebranding of integration and Europeanisation? Sociology has not identified thresholds where interaction between societies, their structural alignment and their developing of a common framework generate a common society.Footnote 57 Making such a claim involves a choice. Given the depth and breadth of 70 years of EU integration and the Europeanisation of national societies, the choice in Article 2 TEU rests on firm ground – it is not spin.

So far, we have gathered evidence for European society in the administrative, economic, and legal fields. All that can be considered political integration and Europeanisation, that is a top-down, rather than a bottom-up, process. However, there is more to society than political integration. Further fields call for attention: the couple, the family, friendships and associations, religious groups, meaning and entertainment, attitudes and beliefs.Footnote 58 Many participants in this project have an urge to go beyond the formalised systems of society and grasp the everyday life of people. Integration in those fields is often addressed as social integration beyond the political one.

One way to study social integration is social history. Hartmut Kaelble, a social historian, has identified European society in European walks of life, common structures in the coming of age, patterns of family, and social security.Footnote 59 Sociology has studied processes of transnationalisation: increasing cross-border activity for travel, education, work, political engagement, or marriages.Footnote 60 The European Statistical Office publishes social indicators, such as poverty rates, life expectancy, and educational achievement. Its data shows European society’s heterogeneity, but one that cuts across the borders of its Member States. There is evidence for European society in social structures.

EU legal analysis helps see those structures. One way is to research how it frames social roles. Thoroughly studied examples include the statuses of adolescents, artists, asylum seekers, authors, bankers, biological mothers, children, climate change activists, consumers, creditors, data managers, data protection officers, data subjects, diplomatic agents, debtors, disabled persons, economic operators, elderly persons, emigrants, entrepreneurs, ethic advisors, expropriated parties, family members, farmers, former EU citizens, gender victims, human embryos, immigrants, inventors, Jean Monnet chairholders, journalists, judges, landowners, lawyers, LGBTIQ people, musicians, passengers, patients, policemen, pollution victims, project managers, public officers, recipients of EU programmes, refugees, religious believers, research volunteers, researchers, sex workers, soldiers, sportspersons, students, taxpayers, teachers, transgender persons, transsexual persons, users, vulnerable persons, waste producers, women, and workers.Footnote 61

Of course, the social structures and roles are richer than their legal frames. Of course, European law’s framing might not do it justice.Footnote 62 Of course, EU law is often broken: be it for ignorance, be it for intent. And yet, EU law is socially relevant. A good proof are the conflicts it breeds. Indeed, conflict theory provides a fine angle to address the structure that is most in the limelight: European values.

Among social structures, many consider values to be particularly important. Some theories even postulate them as essential for society.Footnote 63 Such values are conceived as deeply-rooted normative orientations that are widespread throughout society.Footnote 64 This understanding informs the authors of the Treaties: Article 2 TEU declares that the Union ‘is founded’ on six values that double as key principles of the European constitutional traditions. The authors imply that, for these six values, European society has a common structure in the hearts and minds of its members.Footnote 65

How true is this? The World Values Survey provides little evidence.Footnote 66 If we look at the situation of European society, there is evidence for fighting over values rather than sharing them. Indeed, a major cleavage in European society regards those values. The spat over the rule of law, with the European Commission, the European Court of Justice and some groups in the European Parliament on the one side, and the Hungarian and the Polish governments with some other groups in the European Parliament on the other side, provides the most salient example. The case on the Hungarian anti-LGBTIQ law is just the last in a long series. So, is all the value talk just spin?

It is not, as I will show again with Georg Simmel. His process-oriented understanding of society gives value to conflict.Footnote 67 In general, society is a concept with an inbuilt focus on internal conflict,Footnote 68 different from concepts such as people, nation, or state. Social thought in Simmel’s tradition makes the point that such social conflict is not intrinsically bad. Rather, conflicts can generate, consolidate, and develop a society, provided they are somehow managed and contained.

In this perspective, the values of Article 2 TEU advance European society via the conflicts they generate.Footnote 69 They provide an infrastructure for articulating and processing conflicts in European society, and frame them as European conflicts. This applies to all major conflicts across European society over the past decade: the rule of law crisis, the Euro crisis, the influx of migrants, or the pandemic. These conflicts have mostly been articulated in terms of European values. The fact that their meaning often remained controversial does not undermine, but rather underlines their social relevance.

I am agnostic about the ‘true’ depth, breadth, meaning, and importance of values in European society. But I am sure that the values of Article 2 TEU are relevant. That is because of conflicts over them are omnipresent in legal, political, and everyday discourse. This is a new and relevant development for European society. Less than a decade ago, the values appeared only superficially, just consider the Commission’s prominent White Paper on the Future of Europe.Footnote 70 The White Paper’s superficiality is all the more remarkable, as Viktor Orban’s challenge to those values was already under way. It is only from 2018 (and much for legal activism) that European values started to become socially salient and make a difference.Footnote 71 Since February 2022, their saliency further increased as important European actors are framing the Russian war against Ukraine as threatening ‘our’ values.Footnote 72 This is certainly no empty rhetoric because such framing legitimates confronting an aggressive nuclear power, spending huge sums of money, and welcoming millions of refugees. More than ever ‘our’ European values are both on the news and on the minds. In 2022, the Court even dared to define with these values the identity of the European Union legal order.Footnote 73 That, of course, was meant to buttress the Court’s position in a spat over values, as is to be expected with conflict theory.

The Treaty’s emphasis on values cannot presuppose that consensus is the default condition of Europeans, that internal conflicts are the exception, that they form a homogenous community. Any conceptualisation of European society should account for its disagreements, its conflicts, its heterogeneity. This explains Pierre Bourdieu’s importance in EU sociology.Footnote 74 He theorised society not as one highly integrated unit (or ‘body’), but as a varied network of structured spaces (‘fields’) where individuals and groups interact in the distribution of various forms of capital (political, economic, cultural, social). Each field operates according to its own rules and hierarchies, with agents vying for dominance. Society appears as the totality of many different, though connected fields. This helps form an idea of European society, something evidently looser than what traditional thought conceives as modern society (one that doubles as a people or a nation within one state).

Given European heterogeneity, one might consider if European society should be conceived as European societies.Footnote 75 There are two ways to understand European societies. The first understanding, not at stake here, makes the obvious point that today, after 70 years of integration and Europeanisation, all national societies in the EU are also European (Europeanised) societies. The second, at stake here, speaks of European societies to account for how complex, diverse, fragmented, and even divided European society is.

While I recognise the point, I stick to the singular society. The legal reason for this is that legitimate political authority (the ratifying Member States) have posited this term. But there is more: however heterogeneous the various fields of European society are, the Union is responsible for all of them (Article 3(1) TEU). All fields must respond to the standards of Article 2 TEU. The European constitutional core informs all Union law and unites all fields. This is the key point the collective singular society makes.

C. On identity

In my elaboration so far, European society does not require its members to reflect and cherish their membership. Important theories require this for society, and miss it on the European level.Footnote 76 I address the requirement via the concept of identity.

My understanding of European identity has two prongs. First, some European identity is emerging, but nothing like ‘We-ness’.Footnote 77 That leads to my second prong: the authors of the Treaties posit an understanding of society that goes without ‘We-ness’, a choice I see as sound.

The concept of identity marks a battleground. It is bound up with controversial politics. In European society, so-called identarian movements seek to defend their national identity against alleged foreign overpopulation (Überfremdung), as well as EU domination.Footnote 78 That concern reaches beyond the fringes: various constitutional courts are resisting integration to defend their constitutions’ identity.Footnote 79 At the same time, fostering European identity has been a European policy since 1973.Footnote 80 The first von der Leyen-Commission stood in a long tradition when it chose the motto ‘Promoting our European way of life: Protecting our citizens and our values’.Footnote 81 The European reactions to the Russian aggressive stance is fanning such identity formation, as military confrontation often did.

Two meanings of the term identity are to be distinguished.Footnote 82 The first refers to an ensemble of characteristics of a person, group, or constitution, so ‘constitutional identity’ is equivalent to ‘constitutional core’.Footnote 83 The other meaning, the one relevant here, denotes a person’s inner attitudes, including feelings of belonging.Footnote 84 Hegel already considered a constitution as […] ‘the nature and development of its [a particular people’s] self-consciousness’.Footnote 85 Psychology describes social identity as the sum of the elements by which persons position themselves in a society.Footnote 86 Collective identity consists of consonant social identities based on which individuals perceive themselves as members of a group. ‘We-ness’ is its strongest form.

Collective identity thus requires conscious social belonging. On that token, there is evidence of an emerging European identity. Contemporary psychology relates social identity to a person’s knowledge of group membership, in contrast to older theories that focused on emotions.Footnote 87 Emotions valorising one’s own group remain important, but they are not dominant.Footnote 88 As collective identity builds on shared experiences, public communication is important.Footnote 89 Thus, identity-building is a meaningful policy goal; such policies have been successful in many societies.Footnote 90 As mentioned, the crises made the European Union more visible, today it has far more cognitive relevance than 20 years ago. There are also elements of positive evaluation. According to Eurobarometer 2024, as many as 74 per cent of respondents felt as citizens of the Union.Footnote 91 Many trusted Union institutions more than their Member State’s.Footnote 92

European society, as posited in Article 2 TEU, has a socio-psychological dimension. But it does not amount to EU ‘We-ness’ (the strongest form of collective identity) as a pervasive sentiment among Europeans. Of course, European political actors are using that language, in sync with the policy goal of identity formation. For example, the aforementioned Commission’s 2017 White Paper makes pervasive use of the first-person plural: ‘our achievements’, ‘our security’, ‘our role’, ‘we decide which path we want to take in the future’.Footnote 93 But most perceive such statements as propaganda, though that might have shifted with the war in Ukraine.

Should one require We-ness for qualifying a web of social interaction as a society? Some do, stating that without such We-ness the web would not hold.Footnote 94 To me, that statement seems a postulate more than a finding.Footnote 95 Many show that a democratic society can be viable without We-ness if it counts on corresponding procedures of decision-making.Footnote 96 The authors of the Treaties hold that view: The EU Treaties do not postulate European ‘We-ness’ (nor a European nation or people). That implies that the ever-closer union has ushered a society without assuming European We-ness. The ‘We’ of the American constitution has probably been on their minds, but it is not in the EU Treaty, a silence that is telling.Footnote 97

Those who require We-ness for European society join those who observe a European democracy deficit via the no-demos thesis.Footnote 98 While these are legitimate positions, I want to stress two points. First, society without We-ness is theoretically sound. Second, democratic politics has opted for that understanding. As a reconstructive scholar, I go by that.

4. On the promise

A. A fitting collective singular

Albrecht Koschorke claims that we are all Hegelians, because Hegel stands for modern thought’s reliance on collective singulars.Footnote 99 For political and legal thought, the choice is between state, people, nation, constituent power, or society. Familiar tropes include the ideas that all power originates from the people, that parliament represents the nation, that all constitutional legitimacy rests on the constituent power, that all authority is ultimately vested in the state, or that the infinity of social interactions eventually amounts to one society. These tropes come in many variants. Yet in the end, constitutional theories and doctrinal arguments, treatises of political science and theory, public or private discourses ultimately relate to one of these concepts. They are concepts of closure and thus provide for certainty. God has that role in Western religious thought.

Accordingly, some pro-European voices have advocated a European nation, a European (federal) state, a European people, a European constituent power, a European demos.Footnote 100 None of these concepts made it into the Treaties, nor imposed itself in European constitutional discourse. The authors of the Treaties use these notions exclusively for collective phenomena at the national level: the ‘peoples’ and the ‘Member States’ (see eg Articles 1(2) and 3(1) TEU).

EU law went for many decades without a collective singular. This contributed to the impression that it somehow lacked substance and was for that reason considered deficient.Footnote 101 I consider this lack as a relevant cause for the Europeans’ condition of uncertainty.

Since 2009, European thought can address this lack with European society. Society is a collective singular as important as the people, state, nation, or constituent power. What is specific is that state-centred thinking does not claim society as a central category. Margaret Thatcher famously quipped that there is no such thing as society.Footnote 102 So the term in Article 2 TEU appears as a compromise: on the one hand, it provides European thought with a collective singular; on the other hand, the key concepts of the state-centred view remain at the national level.

Society shares with the state, people, nation, or constituent power the feature of being a collective singular. But these concepts are not univocal, they provide different thrusts to arguments that rely on them. In the last 200 years of thought, the concepts of people, state, nation, and society have represented different approaches to social totality.

Given that the authors of the Treaties posit European society without simultaneously positing a European people, or a European federal state, European society needs to be further distinguished from these concepts. Such differentiation is a familiar challenge for European studies, as most concepts in the public realm were bound up with the state and the people, be it administration, democracy, fundamental rights, or the rule of law. They all had to be reconceptualised for their application to phenomena ushered by European union. The key is to make up with less unity, less identity, more heterogeneity, and with more precarity.

With respect to the concept of state, one distinction is that the common institutions in European society do not command coercive force, neither to the inside nor to the outside.Footnote 103 That feature is key to most understandings of state, but not of society. Moreover, society grasps the social totality more from the interacting individuals and groups (legacy of the contractual origins of societas), whereas state centres on institutions of public authority. In comparison with the concept of people (or nation), society is more open to heterogeneity. People remains bound up with a common language, a common origin, a common history, notwithstanding efforts of pluralisation.Footnote 104 Of all collective singulars, society fits best to grasp the web of interaction and interdependence that has emerged over 70 years of European integration.

B. Pushing new understanding

If European society becomes a leading concept, European constitutional law receives a new dimension. It assumes a societal role. The Treaty posits a constitutive relationship between European law and European society because its constitutional principles ‘prevail’ in European society. The French and many other versions of Article 2 TEU are even more explicit: legal principles characterise European society. Moreover, the Union has to promote these principles (Article 3(1) TEU). This calls for a reconstructive approach. European law, and even more so the facticity of European society, are a long way from being fully characterised by Article 2 TEU’s normative standards (see above, Section 2). Teleological interpretation of EU law has to develop corresponding understanding.

Thinking in terms of European society thus supports the EU’s new constitutionalism.Footnote 105 For a decade now, the Court has been overwriting its functionalist approach to constitutionalism (direct effect, primacy, autonomy)Footnote 106 with a principled one that relies on Article 2 TEU. It started with decisions that confirmed the telos of European integration against possible disintegrationFootnote 107 and then mobilised it against authoritarian and populist tendencies, that is against excesses of the ‘will-of-the-people’ constitutionalism.Footnote 108 European society as developed here supports an understanding of democracy as a process of many mediations. Given European society’s heterogeneity, conflicts between Europeans are normal, not exceptional. This suggests an understanding of their democracy, at the European as well as at the national level, as a principled struggle for multiple compromise, and certainly not as imposing the one will of the one people.Footnote 109

Thinking of European law along with the concept of society pushes for a new understanding of conflicts that beset the European Union:Footnote 110 they no longer appear only as conflicts between Member States, but also as conflicts within one society. The conflicts over the ‘will-of-the-people’ constitutionalism, for example, not only cast liberal Western Member States against illiberal Eastern ones, but they are present throughout European society in almost all Member States.

Along that path, the concept of society informs European discussions on redistribution and social cohesion, two further conflictual issues. Consider the demands of nationalist forces termed as ‘welfare chauvinism’.Footnote 111 That is hard to square with the normative decision for European society as characterised in Article 2 TEU. If people understand that they form one society, it is likely to affect their discussions on redistribution and cohesion. At the same time, dire stress on the national systems of social security is likely to result in stress for European society. Fittingly, the Court has relied on Article 2 sentence 2 TEU for advancing European solidarity, supporting a broad reading of EU legislative powers.Footnote 112 The concept of European society frames and illuminates that development with great traditions of European thought.

Another new insight regards the inside/outside distinction. As for the inside: the term society includes all resident individuals, not only citizens. All third-country nationals who live in the EU belong to European society. It fits that Article 2 TEU defines European society not by history, culture, ethnicity, religion, or origin, but by values that claim to be universal. As for the outside: the term European society serves the European defence against Russian aggression. The General Court allowed the suspension of a Russian controlled news channel (RT France), a severe restriction of media freedom, because it was necessary to defend democracy in European society.Footnote 113 European society thus frames the new geopolitical cleavage, and conveys new understanding of the Europeans’ vulnerability.Footnote 114

C. Republican thrust

Political thought on society runs in two main streams, a liberal and a republican one. They compete in the development of EU law, with republican thought taking the lead. This shows a comparison between Article 2 EEC Treaty and Article 2 TEU. Article 2 EEC Treaty, whose common market was arguably the first juridical articulation of European society, served to develop society via advancing private interests. This objective was interpreted to project a ‘society of private law’.Footnote 115

A republican understanding of society demands more than aggregating and advancing private interests. It fits that the EU Treaty bases the Union on constitutional standards and endows it with institutions that are not an appendix to the market,Footnote 116 but provide for its government. Similarly, the EU has moved from a liberal and pre-political understanding of fundamental rights to one that sees them as conditions for democratic processes.Footnote 117 In the digital sphere, the Union first pursued a liberal model in dealing with social media, giving it a free hand, which was similar to the United States of America. Then, however, the Union switched to a ‘constitutional’ approach’Footnote 118 that can be considered republican. It aims to mobilise public authority (of the Union as well as its Member States) to ensure that companies abide by fundamental rights, helping to form public opinion for the common good.

My republican understanding of European society takes a position in the competing approaches to EU law. It stands against member state-centred understandings. European republicanism values European citizenship, which the state-centred approach often belittles.Footnote 119 It reads the outcomes of the Brussels haggling in light of the European common good, and not as the alignment of state interests. The republican approach also stands against understanding the Union as a mere tool to prevent national policies to negatively impact other Member States,Footnote 120 or as an institution merely for the mobile population.Footnote 121

This republican reading of society connects to the debate on the European public space. The claim that such a space is missing, well known from the debate on European democracy, is also of relevance to European society.Footnote 122 This objection, perhaps tenable until the turn of the century, has lost much of its force due to the Union’s increasing politicisation. The vibrant communication within European society today can be conceived of as a European public space.Footnote 123

Of course, this space is not a replica of the public sphere envisioned by its theorists in the 1960s and 1970s for highly integrated nation-states. With their theories, one can only observe decay and offer criticism. That is legitimate, but it holds little constructive potential. Reconstructive legal scholarship begins with the realisation that the Member States have legitimately decided to leave this world behind.

A public space, as I understand it, is a communicative setting where actors engage in a contest over collective decisions in the presence of an affected audience. For a European public space to materialise, three elements are essential: a mobilising topic of controversy requiring collective resolution that impacts people across Member States; the presence of actors and audiences from across European society; and shared meaning,Footnote 124 which is also understood as a common frame or a common world.Footnote 125

In Europe, such a public space has solidified around the crises mentioned earlier. Today, even routine politics unfold within this space, whether it’s the debate over phasing out combustion engines, classifying nuclear energy as ‘green’, or border security at the Evros River. This European public space often builds upon and connects various national public spaces, but these diverse spaces coalesce into a singular European space when they interact in pursuit of the common good.

Various mechanisms provide for that interaction. In European society, the European Council offers the ultimate institutional mechanism for linking the various spaces in one European space, acting as a crisis manager, impasse-breaker, strategist, shaper or collective head of state.Footnote 126 Its meetings process pressing issues by linking them in the public eye, generating mass media publicity and establishing key European media events. This attention is not spin; research recognises the European Council as the ‘supreme decision-maker’.Footnote 127

Studies on the European public space mostly focus on mass media, but other fora, such as legal journals and blogs, also play a role. Scholarly publications influence collective decisions. They not only describe legal phenomena from the outside, but often impact decision-making. Many scholars today publish with such intent in European fora, such as the Common Market Law Review, the European Constitutional Law Review, the International Journal of Public Law, the German Law Journal, European Law Online, and European Law Live. They form a European public space because they publish articles read across Europe on shaping, interpreting or questioning collective decisions that affect people across European society. The actors (authors), though mainly employed in national institutions, are Europeanised not only for their topics, but also for their frames: scholars who only refer to and speak to their compatriots are unlikely to be published in these journals.

European public spaces develop even more dynamically in blogs such as I-CONnect, EJIL: Talk!, Strasbourg Observers, or Verfassungsblog. This is because a typical blog post takes a stance on a controversial issue, which corresponds to the agonistic moment of public spaces. It is concise and appears quickly when the issue is still in the public eye. It reacts almost as quickly as an article in the mass media, and comes with academic authority. We now have concise, pointed, and current contributions on conflictual topics of European interest on platforms followed throughout Europe. In this way, the national academics feed European public spaces and thus European society.

5. Outlook

The Lisbon Treaty’s introduction of ‘society’ to European constitutional law is relevant, legally, politically, socially, and theoretically. ‘European society’ is a powerful collective singular that might help address the Europeans’ uncertainty over their condition and future path. Of course, realising the potential of the concept requires actors who use it, such as in politics, the media, or legal scholarship.

This understanding of European society marks a position within a contested field. At the same time, it acknowledges the legitimacy of other positions. Society in Article 2 TEU does not carry the force that national constitutions assign to concepts such as people, nation, state, constituent power, or God.Footnote 128 Also the failure of the Constitutional Treaty is to be considered. The decision for ‘society’ in Article 2 TEU is not a decision in the sense of Carl Schmitt or of ‘Republic’ in Article 1 of the Italian Constitution.Footnote 129

On that token, the society-centred approach does not refound EU public authority. But could it construe European society as the source of EU law’s authority? Then the concept would have to synthesize the two foundational choices expressed in Articles 1(1) TEU and Article 2 sentence 1 TEU: The authors of the Treaties founded the Union on the decision of the High Contracting Parties (under the procedure of Article 54 TEU), as well as on common values. Construing European society as the source of EU authority will be met with incredulity: it is hard to imagine the CJEU judging in the name of European society.Footnote 130 And yet, Marcin Baranski makes a plausible argument in that direction.Footnote 131

Should the society-centred approach conceive of European society as an actor? Collective singulars are used in that way: a society (or a state, a nation, a people, a constituent power) expresses its will, makes a decision, a step. Anthropomorphism is widespread in modern thought,Footnote 132 but so are concerns.Footnote 133 Following my plea against reification and personification (Section 3.B), as well as my doubts about European identity (Section 3.C), I stipulate no actorship of European society.

While European society comes without agency of its own, agency exists in its members. Indeed, European society conceptualises their conflictual politicisation of European affairs. The concept is anything but post-political.Footnote 134 More than exhorting unity, it frames political conflicts. European society is averse to political theology. If that triggers a perception of ontological precarity, take it as an asset.

Acknowledgements

I am grateful for the critique and suggestions from Giuliano Amato, Sabino Cassese, Barbara Randazzo, Lucia Serena Rossi, Aldo Sandulli and Andrea Simoncini, as well as members of this project and the MPIL Dienstagsrunde. Much support was provided by Dimitrios Syntrivanis.

Competing interest

The author has no conflicts of interest to declare.

References

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2 F de Witte, ‘Here be Dragons: Legal geography and EU law’ 1 (2022) European Law Open 113; L Azoulai, ‘Living with EU Law’ 1 (2022) European Law Open 140.

3 For a deep examination of the Europeans’ condition, see the contribution of L Azoulai to this issue.

4 Case C-769/22 European Commission v Hungary. 16 Member States are supporting the Commission. On the case, L Kaiser et al, ‘European Society Strikes Back. The Member States Embrace Article 2 TEU in Commission v Hungary’ (Verfassungsblog, 2024) <https://verfassungsblog.de/european-society-strikes-back/> accessed 2 December 2024; Z Detrekői, ‘The Hungarian Pedophile Law: How Talking About LGBTQ Will Land You in Trouble’ (Medium, 2021) <https://medium.com/center-for-media-data-and-society/the-hungarian-pedophile-law-how-talking-about-lgbtq-will-land-you-in-trouble-d2ce9f5fa269> accessed 5 December 2024.

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32 Case T-125/22 RT France v Council of the European Union ECLI:EU:T:2022:483 paras 55, 88.

33 It is much more used in opinions of Advocate Generals, starting with Advocate General F Jacobs, Case C-377/98 Netherlands v Parliament and Council ECLI:EU:C:2001:329 para 102; see also European Commission, ‘White Paper on the Future of Europe. Reflections and Scenarios for the EU27 by 2025’ (1 March 2017) <https://eur-lex.europa.eu/legal-content/DE/TXT/?uri=COM:2017:2025:FIN> accessed 20 December 2024 at 10, 24, 26.

34 On the importance of borders in detail, A Marzal, in this issue.

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36 This understanding continues in the Societas Europaea, the legal form of Airbus, BASF, Dior, established by Regulation (EC) 2157/2001 of 8 October 2001 on the Statute for a European company (SE), OJ L 294. In French, Italian, German understanding corporations form a société, società, Gesellschaft of their shareholders.

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40 M Dawson and F de Witte, ‘From Balance to Conflict. A New Constitution for the EU’ 22 (2016) European Law Journal 204; M Dani and AJ Menéndez, Costituzionalismo europeo: per una ricostruzione demistificatoria del processo di integrazione europea (Edizioni Scientifiche Italiane 2023).

41 See the distinction between society and civil society, RT France v Council of the European Union (n 32) paras 88, 108.

42 Art 16: ‘Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution’. Art 8(2): ‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society’.

43 On society in that dualism, EW Böckenförde, Die verfassungstheoretische Unterscheidung von Staat und Gesellschaft als Bedingung der individuellen Freiheit. 178. Sitzung am 12. Juli 1972 in Düsseldorf, herausgegeben von der Rheinisch-Westfälischen Akademie der Wissenschaften (VS Verlag für Sozialwissenschaften 1973).

44 Eg European Commission’s White Paper on the Future of Europe (n 33) 10–11.

45 These theories can still serve for criticism, eg that European society in Art 2 TEU is groundless or ideological.

46 M Riedel, ‘Gesellschaft, Gemeinschaft’ in O Brunner et al (eds), Geschichtliche Grundbegriffe. Historisches Lexikon zur politisch-sozialen Sprache in Deutschland (Klett 1975) 801–62 (esp 830–3); F Tönnies (ed K Lichtblau), Studien zu Gemeinschaft und Gesellschaft (Springer 2012) 222.

47 For an overview on current theories, A Elliott, Contemporary Social Theory: An Introduction (Routledge 2021). I owe much to F Ferrarotti, Società (Mondadori 1980).

48 R Mehring, ‘Savigny or Hegel? History of Origin, Context, Motives and Impact’ in A von Bogdandy et al (eds), Carl Schmitt’s European Jurisprudence (Nomos 2022) 65.

49 G Hartung, ‘Eklektizismus’ in G Ueding (ed), Historisches Wörterbuch der Rhetorik. Band 2 (De Gruyter 2013) col 984–91.

50 G Simmel, Soziologie. Untersuchung über die Formen der Vergesellschaftung (Duncker & Humblot 1908) 5–12; for an application to European integration, A Farahat, Transnationale Solidaritätskonflikte. Eine vergleichende Analyse verfassungsgerichtlicher Konfliktbearbeitung in der Eurokrise (Mohr Siebeck 2021).

51 In detail, see S Börner and S Carlson, Europasoziologie (Nomos 2023) 33–59.

52 Such research is often inspired by neofunctionalism, EB Haas, The Uniting of Europe. Political, Social and Economical Forces, 1950–1957 (Stanford University Press 1958); for its enduring relevance, Z Lefkofridi and PC Schmitter, ‘Neofunctionalism in the Decade of Crises’ in N Brack and S Gurkan (eds), Theorizing Crises of the European Union (Routledge 2020) 102.

53 The concept of European society before World War II is different, on this G Mallard in this issue. I see the relation between the old and the current European society as similar to that between the old droit public de l’Europe (or Jus Publicum Europaeum) and the current one. On the difference early on P Guggenheim, ‘Das Jus publicum europaeum und Europa’ 3 (1954) Jahrbuch des öffentlichen Rechts der Gegenwart 1.

54 See contributions in relevant journals, eg the Journal of Common Market Studies or European Societies.

55 A Marzal, ‘Between Integration and the Rule of Law: EU Law’s Culture of Lawful Messianism’ 24 (2023) German Law Journal 718.

56 GWF Hegel (eds K Brinkmann and DO Dahlstrom), Encyclopedia of the Philosophical Sciences. Part 1: Science of Logic (Cambridge University Press 2010) para 108 addition and para 109 addition; N Luhmann, Soziale Systeme. Grundriß einer allgemeinen Theorie (Suhrkamp 1984) 157, 159, 196.

57 On society as an ‘emerging phenomenon’, Börner and Carlson (n 51) 39.

58 SM Büttner and M Eigmüller, ‘Europe and Culture: Perspectives of Cultural Sociology’ in SM Büttner et al (eds), Sociology of Europeanization (De Gruyter 2022) 75. For a good overview on the different relevant fields of sociology, scan the topics in the journal European Societies.

59 H Kaelble, Auf dem Weg zu einer europäischen Gesellschaft. Eine Sozialgeschichte Westeuropas 1880–1980 (CH Beck 1987); Id., Eine europäische Gesellschaft? Beiträge zur Sozialgeschichte Europas vom 19. bis ins 21. Jahrhundert (Vandenhoeck & Ruprecht 2020) 185–200. Similarly, W Outhwaite, European Society (Wiley 2008).

60 On the state of research, Börner and Carlson (n 51) 79–93.

61 See the entries in A Bartolini et al (eds), Dictionary of Statuses within EU Law. The Individual Statuses as Pillar of European Union Integration (Springer 2019).

62 See contributions by L Azoulai, F de Witte, G Tagiuri as well as J Orlando-Salling and S Steininger to this issue.

63 H Joas, Die Entstehung der Werte (Suhrkamp 1999) 13–16; N Luhmann, ‘Are There Still Indispensable Norms in Our Society?’ 14 (2008) Soziale Systeme 28.

64 J Habermas, Between Facts and Norms (Polity 1996) 255; G Zagrebelsky, Intorno alla legge (Einaudi 2009) 85.

65 In detail, M Baranski in this issue.

66 <https://www.worldvaluessurvey.org/WVSContents.jsp> accessed 16 December 2024.

67 Simmel (n 50) 247–336; R Dahrendorf, The Modern Social Conflict (University of California Press 1988); A Farahat, ‘Adjudicating Transnational Solidarity Conflicts’ in M Dawson (ed), Substantive Accountability in Europe’s New Economic Governance (Cambridge University Press 2023) 217; M Dani, Il diritto pubblico europeo nella prospettiva dei conflitti (Cedam 2013).

68 Dipper (n 37) 44.

69 J Přibáň, ‘Introduction: On Europe’s Crises and Self-constitutions’ in Id. (ed), Self-Constitution of European Society (Routledge 2016) 3.

70 European Commission’s White Paper on the Future of Europe (n 33).

71 CJEU, Associação Sindical dos Juízes Portugueses (n 21) paras 30, 32, 35.

72 In detail A Marzal, in this issue.

73 CJEU, Case C-156/21 Hungary v Parliament and Council ECLI:EU:C:2022:97 para 127; case C-157/21 Poland v Parliament and Council ECLI:EU:C:2022:98 paras 145, 264, 268.

74 For the legal field, P Bourdieu, ‘The Force of Law. Toward a Sociology of the Juridical Field’ 38 (1986) Hastings Law Journal 814; for his importance, Börner and Carlson (n 51) 61; A Vauchez and B de Witte (eds), Lawyering Europe. European Law as a Transnational Social Field (Bloomsbury Publishing 2013).

75 L Azoulai, ‘Reconnecting EU Legal Studies to European Societies’ (Verfassungsblog, 2024) <https://verfassungsblog.de/reconnecting-eu-legal-studies-to-european-societies/> accessed 4 December 2024; the plural also defines the journal European Societies, published for the European Sociological Association.

76 Bach (n 6) 161–70.

77 For a famous articulation of us and them: C Schmitt, The Concept of the Political (The University of Chicago Press 2007).

78 G Hentges et al (eds), Europäische Identität in der Krise? Europäische Identitätsforschung und Rechtspopulismusforschung im Dialog (Springer 2017).

79 C Calliess and G van der Schyff (eds), Constitutional Identity in a Europe of Multilevel Constitutionalism (Cambridge University Press 2020).

80 Declaration on European Identity, Bull. EC 12-1973, 118.

81 European Commission, ‘Promoting our European way of life. Protecting our citizens and our values’ <https://ec.europa.eu/info/strategy/priorities-2019-2024/promoting-our-european-way-life> accessed 2 December 2024; E Guild, ‘Promoting the European Way of Life: Migration and Asylum in the EU’ 26 (2021) European Law Journal 355; H de Waele, ‘Promoting our European Way of Life’ in H Suder and L Wittenberg (eds), The von der Leyen Commission. Geopolitical Commission under the Pressure of Crises (2019–2024) (Nomos 2024) 153.

82 G Schmidt, ‘Identität. Gebrauch und Geschichte eines modernen Begriffs’ 86 (1976) Muttersprache 333; J Sterck, ‘Sameness and Selfhood. The Efficiency of Constitutional Identities in EU Law’ 24 (2018) European Law Journal 281.

83 J Bast and A von Bogdandy, ‘The Constitutional Core of the Union. On the CJEU’s New Constitutionalism’ 61 (2024) Common Market Law Review 1471.

84 EH Erikson, ‘Identity and the Life Cycle’ 1 (1959) Psychological Issues 1; J Habermas, Zur Rekonstruktion des Historischen Materialismus (Suhrkamp 1976) 63–128.

85 GWF Hegel (ed AW Wood), Elements of the Philosophy of Right (Cambridge University Press 1991) para 274.

86 O Angelucci von Bogdandy, Zur Ökologie einer Europäischen Identität. Soziale Repräsentationen von Europa und dem Europäer-Sein in Deutschland und Italien (Nomos 2003) 33–47.

87 H Tajfel and JC Turner, ‘An Integrative Theory of Intergroup Conflict’ in WG Austin and W Stephen (eds), The Social Psychology of Intergroup Relations (Wadsworth 1979) 33; V Kaina, Wir in Europa. Kollektive Identität und Demokratie in der Europäischen Union (Springer 2009) esp 39–47.

88 A Mummendey, ‘Social Discrimination and Tolerance in Intergroup Relations. Reactions to Intergroup Difference’ 3 (1999) Personality and Social Psychology Review 158.

89 O David and D Bar-Tal, ‘A Sociopsychological Conception of Collective Identity. The Case of National Identity as an Example’ 13 (2009) Personality and Social Psychology Review 354.

90 J Assmann, Cultural Memory and Early Civilization. Writing, Remembrance, and Political Imagination (Cambridge University Press 2011) 111–46; P Ricœur, ‘Reflections on a New Ethos for Europe’ 21 (1995) Philosophy & Social Criticism 3, 6.

91 European Commission, ‘Standard Eurobarometer 101, Spring 2024’ <https://europa.eu/eurobarometer/surveys/detail/3216> accessed 14 December 2024. Some doubt these data: M Höpner and B Jurczyk, ‘Kritik des Eurobarometers. Über die Verwischung der Grenze zwischen seriöser Demoskopie und interessensgeleiteter Propaganda’ 40 (2012) Leviathan 326.

92 European Commission, ‘Public Opinion in the European Union’ (Standard Eurobarometer 101, Spring 2024) <https://veriangroup.com/hubfs/BE/Eurobarometer/Standard-101-Spring%202024.pdf> accessed 15 December 2024 at 38; Eurofound (European Foundation for the Improvement of Living and Working Conditions), ‘Societal change and trust in institutions’ (research report 2018) <https://www.eurofound.europa.eu/system/files/2018-12/ef18036en.pdf> accessed 15 December 2024 at 9.

93 European Commission’s White Paper (n 33) 3, 6.

94 See von Bogdandy (n 1) 9–13.

95 JL Sullivan and JE Transue, ‘The Psychological Underpinnings of Democracy: A Selective Review of Research on Political Tolerance, Interpersonal Trust, and Social Capital’ 50 (1999) Annual Review of Psychology 625.

96 See references in Bartolini et al (n 61).

97 For further elaboration, see R Schütze, ‘Models of Demoicracy: Some Preliminary Thoughts’ 2020/08 EUI Working Paper Law 9–10, 19–20.

98 R Bellamy, A Republican Europe of States: Cosmopolitanism, Intergovernmentalism and Democracy in the EU (Cambridge University Press 2019); JHH Weiler, ‘The State “über alles”. Demos, Telos and the German Maastricht Decision’ in O Due et al (eds), Festschrift für Ulrich Everling. Volume 2 (Nomos 1995) 1651.

99 A Koschorke, Hegel und wir (Suhrkamp 2015) 82–92.

100 Nation: R Coudenhove-Kalergi, Die europäische Nation (Deutsche Verlags-Anstalt 1953); statehood: J Monnet, Les États-Unis d’Europe ont commencé. La communauté européenne du charbon et de l’acier. Discours et allocutions 1952 – 1954 (Robert Laffont 1955); people: RM Lepsius, ‘Europa nach dem Ende zweier Diktaturen’ in B Schäfers (ed), Lebensverhältnisse und soziale Konflikte im neuen Europa: Verhandlungen des 26. Deutschen Soziologentages in Düsseldorf 1992 (Campus 1994) 33–44; constituent power: Patberg (n 14) part III; Case T-561/14 One of Us and Others v Commission (“constitutional power”) ECLI:EU:T:2018:210 paras 113–14; demos: Opinion of Advocate General E Sharpston, joined Cases C-715/17, C-718/17 and C-719/17 Commission v Poland and others ECLI:EU:C:2019:917 para 253.

101 For a thoughtful discussion, U Haltern, Europarecht und das Politische (Mohr Siebeck 2005) 534–40.

102 D Mares, Margaret Thatcher. Die Dramatisierung des Politischen (Gleichen 2014) 30–5.

103 But see such powers of the border management agency Frontex, Art 82(8) Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, OJ 2019 L 295/1.

104 See U Volkmann, ‘Volk’ Revisited (Mohr Siebeck 2025).

105 In detail Bast and von Bogdandy (n 83).

106 On that functional constitutionalism, Stein (n 11); JHH Weiler, ‘The Transformation of Europe’ 100 (1991) The Yale Law Journal 2403.

107 CJEU, Opinion 2/13 Accession to the ECHR II ECLI:EU:C:2014:2454 paras 155–76; Case C-284/16 Achmea ECLI:EU:C:2018:158 para 33; Opinion 1/17 CETA ECLI:EU:C:2019:341 paras 110, 151.

108 CJEU, Case C-216/18 PPU LM ECLI:EU:C:2018:586 paras 35, 48, 50; Case C-619/18 Commission v Poland (Independence of the Supreme Court) ECLI:EU:C:2019:531 paras 42, 47, 58; Hungary v Parliament and Council (n 73) paras 127, 232; Poland v Parliament and Council (n 73) paras 145, 264, 268; Case C-119/23 Valančius v Lithuania ECLI:EU:C:2024:653 para 47.

109 In detail von Bogdandy (n 1) 1–2, 136–40.

110 See contributions in 18 (2012) European Law Journal 607.

111 M Ketola and J Nordensvard, ‘Reviewing the relationship between social policy and the contemporary populist radical right: welfare chauvinism, welfare nation state and social citizenship’ 34 (2018) Journal of International and Comparative Social Policy 172.

112 CJEU, Hungary v Parliament and Council (n 73) para 129; joined Cases C-643/15 and 647/15 Slovakia and Hungary v Council ECLI:EU:C:2017:631 paras 253, 291.

113 See CJEU, RT France v Council (n 33), as well as A Marzal’s contribution in this issue.

114 L Azoulai is stressing this point in his contribution in this issue.

115 From the ordoliberal school F Böhm, ‘Privatrechtsgesellschaft und Marktwirtschaft’ 17 (1966) Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft 75; EJ Mestmäcker, Recht in der offenen Gesellschaft. Hamburger Beiträge zum deutschen, europäischen und internationalen Wirtschafts- und Medienrecht (Nomos 1993) 60–73.

116 A Somek, The Cosmopolitan Constitution (Oxford University Press 2014) 31, 210.

117 S Rodotà, Il diritto di avere diritti (Editori Laterza 2013).

118 G de Gregorio, ‘The rise of digital constitutionalism in the European Union’ 19 (2021) International Journal of Constitutional Law 41.

119 Eg Bellamy (n 98) 2–3, 10, 13.

120 See the conflict of laws-approach of C Joerges, Konflikt und Transformation: Essays zur europäischen Rechtspolitik (Nomos 2022) 463–584.

121 R Bauböck, ‘Why European Citizenship? Normative Approaches to Supranational Union’ 8 (2007) Theoretical Inquiries in Law 453; F de Witte, ‘The Liminal European: Subject to the EU legal order’ 40 (2021) Yearbook of European Law 56.

122 HJ Trenz, ‘Europeanizing the Public Sphere – Meaning, Mechanisms, Effects’ in U Liebert and J Wolff (eds), Interdisziplinäre Europastudien. Eine Einführung (Springer 2015) 233; HJ Trenz, ‘The Saga of Europeanization: On the Narrative Construction of a European Society’ in S Börner and M Eigmüller (eds), European Integration, Processes of Change and the National Experience (Palgrave Macmillan 2015) 207.

123 T Risse, ‘European Public Spheres, the Politicization of EU Affairs, and Its Consequences’ in Id. (ed), European Public Spheres. Politics Is Back (Cambridge University Press 2015) 141; see also L van Middelaar, Pandemonium. Saving Europe (Agenda 2021) 15; P Hilbert, Die Informationsfunktion von Parlamenten. Zugleich ein Beitrag zur demokratischen Bedeutung des Europäischen Parlaments (Mohr Siebeck 2022) 422.

124 Risse, ‘Introduction’ in Id. (n 123) 10–11.

125 In the footsteps of Arendt, Somek and Paar (n 17) section 12.

126 Thus L van Middelaar and U Puetter, ‘The European Council: The Union’s Supreme Decision-Maker’ in D Hodson et al (eds), The Institutions of the European Union (Oxford University Press 2022) 66–7.

127 Van Middelaar and Puetter (n 126) 51.

128 For God’s authority, see the preamble of the Irish and the Polish constitution.

129 M Cartabia, ‘The Italian Constitution as a Revolutionary Agreement’ in R Albert (ed), Revolutionary Constitutionalism: Law, Legitimacy, Power (Hart Publishing 2020) 313; C Schmitt, Constitutional Theory (Duke University Press 2008) 60–1.

130 See von Bogdandy (n 1) 238, 242.

131 See his contribution to this project.

132 For an exploration, B Johnson, ‘Anthropomorphism in Lyric and Law’ 10 (1998) Yale Journal of Law & the Humanities 549.

133 C Möllers, Staat als Argument (Mohr Siebeck 2011).

134 On that danger, see JHH Weiler, ‘Bread and Circus. The State of European Union’ 4 (1998) Columbia Journal of European Law 223.