A. What makes the critique of EU law critical?

A recent definition of the ‘critical turn’ in EU legal studies refers to ‘a growing current of thought which considers the model of integration through law a failure’.Footnote ⁴⁰ There is no doubt that this characterisation is descriptively accurate. The previous section demonstrated that critical EU law scholarship, either directly or indirectly, challenges the presumption of law as a legitimate and/or effective tool for deeper integration between the Member States. This type of critique promises to redeem the law from functionalism coated in unfounded idealism. From a more positive angle, it can be seen as a first step towards redefining the role of law in the European project.Footnote ⁴¹ The charge of functionalism is commonly linked to an instrumentalising conception of law in the EU legal order.Footnote ⁴² As noted in Section 2, instrumentalism refers to the view that the law is justified to the extent that it serves particular policy goals. The ‘instrumentalisation of law’ may also explain the general lack of interest in methodological questions in EU legal studies.Footnote ⁴³ But focusing on what roles the law cannot and should not have in the integration project means that critique is still defined by the traditional paradigms of European integration theory. Even when critical research seeks to rethink the fundamentals of EU law (eg its alleged functionalism and instrumentalism), it seems unable to operate outside the framework which analyses the law in terms of its effects.

The difficulties of breaking through the boundaries of the functionalist discourse not only create a paradox at the heart of critical EU law scholarship, but also risk leaving critical interventions underdeveloped by not taking notice of critique’s methodological underpinnings. Much of critical EU law scholarship operates at the level of normative political theory and legal philosophy, with little or no discussion on what other meanings could be assigned to critique. The post-Kantian idea of critical philosophy wanted to separate critique from purely justificatory arguments. In EU legal studies, however, the need for critique is often explained by the perceived lack of ‘normative vision’ and ‘theoretical foundations’ in EU law.Footnote ⁴⁴ Comparing and evaluating different normative theories against one another without question forms an important part of critical EU law scholarship. But a genuinely ‘critical turn’ in EU legal studies cannot be accomplished without a more intentional and systematic engagement with the critical method. Otherwise, the risk is that qualifying research as critical simply becomes a tool for defending the author’s preferred political theory of the EU and its Member States against other feasible, but allegedly non-critical, normative-theoretical approaches to European integration.

Moreover, the critical study of EU law often presents itself as capable of straightforwardly uncovering the potentially harmful effects of EU law. As such, it seems to imply that a purely unmasking critique is possible. This framing of critique appears questionable if we take even half-seriously the argument that ‘[c]ritique is always motivated’.Footnote ⁴⁵ It is not enough to argue that critique is needed to expose the possible ideology of EU law. On the contrary, it is equally important to explore the potentially ideational, or even ideological, elements of critique itself. Abasic definition of ideology is a system of ideas, ideals, or beliefs. But the term ‘ideology’ is often used with a more negative connotation to describe how the dominant social groups use their particular ideas to maintain and justify their power over other groups in society. The term ‘ideational’ can be used as a less politically charged alternative to ‘ideological’. These observations about unmasking critique also apply to a rejectionist critique of EU law, which no longer looks for a revised normative justification for legal integration. Probing into the underlying rationalisations of critique is nevertheless difficult without a more developed critical method. Here the nodus is not that critique is inherently normative (as it often is), but that its normativity becomes concealed when critique lacks adequate methodological reflexivity.

From this perspective, it appears problematic that the critical motif in EU law scholarship is commonly equated to the substance of research, that is, to whether a given piece of scholarship adopts a negative or sceptical view on European legal integration. This is illustrated in how the term ‘fundamental critique’ is used to describe how rejectionist critique is, that is, how uncompromisingly it argues that EU law has harmful effects either at the level of the EU’s own institutions and governance or within the Member States.Footnote ⁴⁶ While substantive criticism has a valid place in the study of EU law, it would be unsatisfactory to discern the growing interest in critical research as a mere raise of scepticism amongst EU law scholars. For instance, Geoffrey Samuel points out that ‘methodology and the source of knowledge cannot be divorced’ and ‘[t]o take the methods seriously is to take knowledge (epistemology) seriously’.Footnote ⁴⁷ Here the term ‘epistemology’ refers to what can be known and why. That the link between methodology and epistemology has not received sufficient attention in EU legal studies means that critique is frequently assimilated with criticism, without considering what further criteria define a fully developed critical method. Moreover, as will be seen in the next part of this section, recourse to supposedly non-normative, quantitative and qualitative, empirical research cannot alone fill these methodological gaps in the normative critique of EU law. Empirical critique, while important, comes with its own baggage of often unpronounced assumptions of social reality.

B. The complex relationship between a non-normative and a normative critique of EU law

The rise of empirical research methods in the study of EU law owes to the earlier scholarship, which demonstrated that political science research in the European Studies movement needs to integrate the study of legal integration into its research agenda.Footnote ⁴⁸ But it is clear that the empirical analysis of European law also has value that is independent of political science. EU environmental law scholarship offered an early example of how a critical sociological perspective confronted the more traditional narratives and conceptions of EU law.Footnote ⁴⁹ The sociological analysis challenged the dominant view of law ‘as formal, relatively autonomous and instrumental in character’ in the study of EU law.Footnote ⁵⁰ In particular, it promised to ‘distinguish more clearly between questions about the nature of law and its role in EU integration’.Footnote ⁵¹ By now, the use of empirical sociological and socio-legal research methods has expanded from environmental regulation to several other fields of EU law.Footnote ⁵² While a sociological critique can have significant implications for how legal integration is theorised,Footnote ⁵³ socio-legal research on EU law primarily draws on the quantitative or qualitative primary data, rather than on social theory.Footnote ⁵⁴ Because descriptive research designs tend to leave the relationship between normative and non-normative critique unexplored, they also leave the methodological turn for critical EU law scholarship unfulfilled.

A non-normative critique promises to describe social reality without making any normative-evaluative claims. The so-called new or critical history of European law provides a prominent example of how the critique of EU law can learn from other disciplines, while simultaneously reflecting the difficult relationship between a non-normative and a normative critique of EU law.Footnote ⁵⁵ The historical study of legal institutions and practices applies the non-normative methods of historical analysis to the study of EU law. Here the promise is that the study of primary archival sources ‘significantly amends the conventional understanding of the legal dimension of European integration as reflected in the work of legal scholars and social scientists’.Footnote ⁵⁶ Yet, in critical history, the analysis often takes a normative turn at the end: what distinguishes critical history from other forms of historiography is that critical history extends from the descriptive to the interpretative analysis of empirical findings. One example of this is when the history of European law is interpreted through the lens of ‘judicialisation’.Footnote ⁵⁷ As soon as the critical focus moves from describing archival sources to their normative-interpretative analysis, the above questions about the critical method will resurface. This is why the critical history of EU law should pay attention to the ongoing discussion on the limits of history as a tool for critique in international law.Footnote ⁵⁸

These observations about sociological and historical critiques of EU law explain why the use of empirical research methods cannot replace the search for a more developed critical method in the study of EU law. This is so because the idea of a purely descriptive, non-normative critique is an oxymoron. When the findings of empirical research are used to advance the critical project, the critic faces a set of methodological questions that are not different from methodological and epistemological challenges that foil a purely unmasking critique of EU law. It has been noted that socio-legal research often lacks ‘a sophisticated approach to the complexity of interactions between legal and extra-legal practices’.Footnote ⁵⁹ The lack of social-theoretic analysis is particularly problematic for EU law scholarship because the relationship between EU law and its social, political, and economic contexts is meant to carry so much explanatory weight in the critique of EU law. If these relationships remain under-theorised, that will undermine the credibility of critical EU law scholarship.

The limits of non-normative empirical research bring us back to the question of how ‘facticity’ and ‘validity’ interact in the critique of EU law.Footnote ⁶⁰ When critical EU law scholars contrast the law with political, economic, or social facts, they often draw on what counts as the ‘external’ tension between facticity and validity in the Habermasian account of modern law.Footnote ⁶¹ The non-normative analyses of EU law go further to expose what Habermas calls the ‘internal’ tension between facticity and validity in the law: ‘the facticity of the enforcement of law is intertwined with the legitimacy of a genesis of law that claims to be rational’.Footnote ⁶² For Habermas, however, the internal tension between facticity and validity is not limited to the law, but the ideational element of validity has its origins in the forms of language and communication.Footnote ⁶³ In other words, claims to validity, understood as rationality, form an integral part of all social relations (not just legal relations) that are based on linguistic interaction. This short glimpse of Habermas’ thought further supports the argument that, for the purposes of EU law scholarship, the critical method cannot be purely descriptive and that the crucial question is how critical EU law scholars navigate the entanglement between facticity and validity not just in law, but also in critique.

To sum up, the visible growth in critical scholarship is not yet matched with a sufficiently developed methodology of critique in the study of EU law. Arevisionist critique, which calls for a renewed normative-theoretical vision of EU law, would benefit from contemplating the facticity of law itself, that is, the ways in which the world of social, political, and economic facts is not external to the law. Amore rejectionist critique of EU law, for its part, cannot hide behind the veil of facticity but needs to encounter the normative-ideational dimension of the critical project itself. These blind spots in different types of critical interventions go unnoticed insofar as the focus on substantive criticism eclipses methodological and epistemological choices that shape critique from the outset. The relevant methodological openings, such as critical history or sociological critique, raise important questions about how EU law is researched. Because these approaches tend to remain confined to specific sub-fields of EU law, their contribution to a broader debate on the methodology of critique in EU legal studies is not yet fully visible. Moreover, the critical potential of empirical socio-legal research on EU law is hindered by the lack of engagement with social theory. With these concerns in mind, the next section will consider what methodological lessons the normative critique of EU law could draw from critical social theory.

A. Critical social theory as a method

This article views the critical theory of society as a method, rather than as a comprehensive theory of society. This qualification is important because it allows us to draw on critical social theory, without succumbing to its more problematic claims about society and social rationality. Developing both empirically and philosophically grounded theory was central to critical theory from the outset.Footnote ⁶⁹ The main focuses of social critique were political economy, social psychology, and cultural theory. The interdisciplinary research agenda of the early Frankfurt School critical theory held that philosophical reflection cannot be dissociated from social reality, although it cannot be reduced to a mere description of social reality either.Footnote ⁷⁰ This approach resulted in a critique of positivism in social sciences,Footnote ⁷¹ and in an equally strong critique of idealismFootnote ⁷² in philosophy.Footnote ⁷³ This type of social critique required a ‘philosophical-historical’ starting point that could locate theory in the ‘historical process’.Footnote ⁷⁴ In the early stages of critical theory, this was a materialist (Marxist) account of history, as opposed to the idealist (Hegelian) theory of history. Acommon vantage point in different branches of critical theory was to view late capitalism as an expression of distorted social rationality.Footnote ⁷⁵

A strictly materialist theory of society came with a set of reductive philosophical and historical assumptions. First, the early critical theory generated ‘closed functionalism’ in social analysis and obscured the line between descriptive and prescriptive analysis.Footnote ⁷⁶ For instance, Axel Honneth argues on this basis that ‘the basic historical-philosophical and sociological assumptions of the Frankfurt School can no longer be defended’.Footnote ⁷⁷ Second, the early critical theory failed to address questions concerning gender and race. As Honneth notes, it is important to recognise the unique methodological bequest of critical theory, while maintaining distance from its more problematic claims about social rationality.Footnote ⁷⁸ For it is not the reductionist materialism of the early critical theory, but its understanding of the critical method, which can contribute to the study of EU law. This is not to say that the analysis of EU law cannot benefit from the materialist theories of society, as is demonstrated by the recent scholarship on the ‘material constitution’ both in the EUFootnote ⁷⁹ and beyond.Footnote ⁸⁰ But neither the material nor the ideational analysis of social reality is adequate on its own because there is a constant interplay (and mutual dependence) between the two.

The central role of methodological questions in critical social theory is captured in the statement that: ‘Critical theory, after all, is not a homeland but a method. It is a strategy of reflection that aims to trouble all forms of untroubled cathexis [emotional investment] – even the cathexis with critical theory itself.’Footnote ⁸¹ The point is not that social critique would be non-normative – on the contrary, it is openly normative. The major difference in comparison to the legal-normative critique of EU law is that, in its normativity, critical social theory appears more reflexive and, thus, methodologically more developed than critical EU law scholarship. The next part of this section will clarify this by exploring in more detail the following methodological commitments within the critical theory of society: the co-existence of meta-critique and critique’s immanence, the role of mediation and contingency in social critique, and the negativity of critical dialectics. The crucial question for this article is how critical dialectics can strengthen the critical method in the study of EU law. The subsequent part of this section will seize this question with a particular focus on the alienation critique and the ideology critique as two tentative examples of how the critique of EU law can build on the methodological commitments of critical theory.

B. Re-assembling the critical method for EU law: the four components of critical dialectics

What differentiates the critical theory of society methodologically from other branches of social theory? And in which sense can critical social theory steer the critique of EU law? The dialectical method of critique is based on ‘the ongoing determination of the relation, opposition, and necessary connection’.Footnote ⁸² It will be introduced by explaining why the commitment to metacritique, critique’s immanence, contingency, and negativity are so important to critical theory and how these methodological dispositions frame the relationship between theory and practice. But before having a closer look at the methodology of critical dialectics, it is important to reiterate that critical theory is particularly interested in, and sensitive to, interactions between ideas and materiality. In the end, the dialectical method of critique helps us to discern how social rationalisations are always embedded in particular social realities – and viceversa. This finding is important because it has direct implications for what type of validity claims critique can make. The dialectical method of critique defies both the theoretical and the empirical versions of purely unmasking critique in the study of EU law. This means that the critique of EU law will need to reconsider its validity claims if it strives for a more dialectical mode of critique.

The first key component of critical dialectics is that a methodologically sound critique requires metacritique. The aim of metacritique is ‘to develop a self-reflexive examination. .. of the conditions for the possibility of a critical inquiry’.Footnote ⁸³ This type of critical self-reflexivity is not prominent in critical EU law scholarship at the moment.Footnote ⁸⁴ This is problematic because the lack of metacritique may easily produce a misleading idea of purely unmasking critique, which remains oblivious both to the epistemological and the ideational underpinnings of critique. Metacritique is driven by the idea that ‘every epistemology is determined by a normative commitment to how the world ought to be’.Footnote ⁸⁵ The exercise of metacritique seeks to clarify this underlying ‘normative commitment’ and ‘its entanglement in a host of social conditions that would remain otherwise obscured’.Footnote ⁸⁶ It is important to integrate a meta-critical perspective into the critique of EU law. However, in critical theory, the argument for metacritique comes with a further qualification: metacritique is not universally applicable but requires a conception of social rationality. Critical theory accordingly links the possibility of meaningful metacritique to critique’s immanence.

The second key component of critical dialectics is critique’s immanence. The notion of immanent critique derives the standards of critique from social practices that are critiqued.Footnote ⁸⁷ In other words, these standards are viewed as internal to the object of critique. Ametacritique that is aware of its immanence needs to consider whether critique always requires prior identification with the ‘existing value horizon’.Footnote ⁸⁸ That the question about critique’s immanence remains largely unaddressed in the critical study of EU law creates a stark contrast with the critical method in social theory.Footnote ⁸⁹ This is clearly an area where critical theory can show the way for EU law scholars – although it does not offer any easy answers in this context. The immanence of critique does not automatically exclude ‘context-transcending’ claims of validity. In critical theory, the term ‘context-transcendence’ refers to normative propositions that ‘are at once immanent to the sociocultural context in question and transcend it’.Footnote ⁹⁰ But recourse to context-transcendent claims creates a difficult justification problem at the heart of critical theory.Footnote ⁹¹ Critical theory has not always succeeded in solving this justification problem although connecting an immanent critical project with a context-transcending concept of rationality is what distinguishes critical theory from other forms of social critique.Footnote ⁹²

One way forward is to reframe metacritique as a genealogical critique, which explores how normative ideas change over time and how these ‘shifts of meaning’ affect different social groups.Footnote ⁹³ In the context of European integration, a genealogical critique can explore, for instance, how the ideas of democracy, equality, or constitution have changed over the course of the integration project and what implications these changes have from the perspective of varied social groups. Different offspring of critical theory agree that social reality is contingent – and that this claim of contingency also applies to concepts that describe social reality.Footnote ⁹⁴ This is yet another area where critical EU law scholarship can fruitfully draw on critical social theory. Max Horkheimer’s early distinction between traditional and critical theory proceeded from the claim that ‘the facts which our senses present to us are socially preformed’.Footnote ⁹⁵ T. W. Adorno, another key figure in the early critical theory, held that ‘[t]here is nothing that is not transmitted’.Footnote ⁹⁶ This premise about the mediated (or ‘transmitted’) nature of social reality is methodologically important because it highlights that critique remains trivial unless it comes into terms with its social embeddedness.Footnote ⁹⁷ From this perspective, the normative critique of EU law needs to more explicitly articulate and defend its underlying social rationalisations.

The third key component of critical dialectics is accordingly the principle of mediation and the related claim to contingency. Insofar as all ‘meanings are mediated’, social analysis necessarily includes ‘interpretation’ instead of ‘passive endorsement’.Footnote ⁹⁸ Amajor concern both in the revisionist and the rejectionist analyses of EU crisis law is that the law has become a tool for political necessity. This concern refers to the ways in which the legal form is used to legitimise and justify the EU’s various external and internal crisis management strategies. When critical scholarship points to the ‘death of law in facticity’,Footnote ⁹⁹ it uses vocabulary that is familiar to critical social theory. In critical theory, however, the principle of mediation also problematises the very idea of ‘facticity’Footnote ¹⁰⁰ or ‘givenness’.Footnote ¹⁰¹ In Adorno’s thought, placing the critical focus on the non-conceptual reality results in materialism, understood as the object’s ‘primacy’ over subjective reason.Footnote ¹⁰² But the central role of mediation in social critique simultaneously helped Adorno to avoid ‘naïve realism’Footnote ¹⁰³ and to maintain the possibility of a critical subject.Footnote ¹⁰⁴ In other words, the mediated nature of the social calls for a critical analysis of facticity itself – as opposed to using facticity as a self-explanatory critical lens.

For instance, Brian O’Connor observes that ‘Adorno regards the notion of a “social” given as thoroughly suspicious’.Footnote ¹⁰⁵ For Adorno, the principle of mediation expressed a reciprocal relationship between the subject (ie the critic) and the object (ie reality).Footnote ¹⁰⁶ At the same time, the ‘otherness’ of the object (ie its facticity) countered any totalising vision of conceptual reasoning over the object.Footnote ¹⁰⁷ The way in which Adorno questioned the unity of the subjective/conceptual reason and the objective reality provides an example of how mediation operates as a methodological tool in social critique.Footnote ¹⁰⁸ This reinforces the claim that the methodological gaps within critical EU law scholarship cannot be filled by a descriptive, supposedly non-normative, critique (eg sociology and history) alone because the way in which social facts and practices are framed always depends on theoretical and epistemological assumptions that underpin such studies. In facing this challenge, the non-normative critique of EU law also needs to more explicitly articulate and defend its underlying social rationalisations.

The fourth key component of critical dialectics is its negativity. The negativity of critical dialectics seeks to ‘identify distortions, inversions, pathologies, illusions, paradoxes, contradictions, and crises’.Footnote ¹⁰⁹ Negative dialectics hopes to avoid ‘essentialist theorisation’.Footnote ¹¹⁰ It does so by asserting that negative concepts do not require ‘pure’ or ‘positive’ versions of these same concepts.Footnote ¹¹¹ The term ‘essentialism’ refers to a mode of thinking that reifies social identities (eg nationality or gender) as essential characteristics of people who belong to those groups. In contrast to Hegel’s ‘dialectical overcoming of difference’, negative dialectics aims at ‘sustaining difference and negativity rather than seeking their premature reconciliation’.Footnote ¹¹² The important point from the perspective of this article is that negativity in critical social theory is first and foremost a methodological standpoint – although it is often misunderstood as a substantive disposition.Footnote ¹¹³ In EU law scholarship, the distinction between substantive and methodological negativism becomes blurred when the methodological commitment to critique is confused with substantive criticism. This is problematic because substantive criticism often operates in ways that would be labelled as ideological by critical social theory.Footnote ¹¹⁴ This point will be discussed in more detail in the next part of this section.

Negative dialectics dismisses any totalising attitude over the object of critique. As such, it raises the question of how EU law as an object of study relates to the critical observer. This question is closely linked to the relationship between theory and practice in critical social theory and, also, in critical EU law scholarship. The ‘unity’Footnote ¹¹⁵ of theory and practice is generally regarded as a central characteristic of critical social theory.Footnote ¹¹⁶ It implies that social critique cannot be separated from the need of social emancipation and change. The negative dialectical method rejects any simplistic vision of the ‘political realization’ of theory.Footnote ¹¹⁷ But critical theory cannot abandon the ‘confidence in the critical potentialities of human reason’ to the same extent as, for instance, poststructuralist or postmodern philosophy does.Footnote ¹¹⁸ Peter Gordon points out in his reading of Adorno that: ‘The primacy of the object. .. entails the persistence of the subject who confronts it. This subject. .. remains the only source of critical resistance against [philosophical] positivism.’Footnote ¹¹⁹ Axel Honneth, for his part, emphasises that: ‘Without a realistic concept of “emancipatory interest” that puts at its center the idea of an indestructible core of rational responsiveness on the part of subjects, this critical project will have no future.’Footnote ¹²⁰

Similarly, the critique of EU law cannot avoid the difficult questions of what it means to reconcile the ‘diagnostic’ and ‘transformative’ aims of critique and whether the two can ever be meaningfully separated without annihilating the critical project as a whole.Footnote ¹²¹ The critique of EU law remains methodologically incomplete insofar as it builds on the idea of a purely unmasking critique – whether theoretical or empirical. It has been noted that ‘[a] method means a path: not the path that a thinker follows but the path that he/she constructs. . .’ and that ‘[e]xamining a method thus means examining how idealities are materially produced’.Footnote ¹²² This reference to materially produced idealities highlights that the critical project never exists in a vacuum but is always shaped by the same social dynamics that form its object. Ametacritical standpoint that is aware of its own immanence, the recognition of the mediated/contingent nature of social facts, and the negativity of critical dialectics enable critical research to come into terms with its social embeddedness. But how could the critical study of EU law operationalise these seemingly very abstract methodological positions? And what difference would that make? The next part of this section will explore these questions in more detail.

C. From an unmasking to a dialectical critique of EU law: two examples

The idea of ‘contestability’ is one of the guiding normative premises in critical theory. This means that the critical project has failed methodologically and intellectually as soon as it seems to reach a conclusion, beyond which no critical reflection is required. In practice, the underdeveloped methodology of critique leaves the critique of EU law to drift between Scylla and Charybdis, that is, between epistemological and cognitive authoritarianism, on the one hand, and philosophical and sociological positivism, on the other hand. In this context, epistemological authoritarianism refers to ‘restriction of knowledge of what counts as a rational interest to the epistemically privileged theorist’.Footnote ¹²³ This warning against the hazards of authoritarianism may sound familiar to many EU law scholars, taking into account the recent discussion on latent authoritarian tendencies in the project of European integration.Footnote ¹²⁴ While recourse to the law as a means of integration may be susceptible to turning democratic politics into ‘authoritarian liberalism’,Footnote ¹²⁵ the unmasking critique of EU law is vulnerable to more subtle forms of epistemological authoritarianism. Therefore, it is important to consider how the critique of EU law could develop in a non-authoritarian way, without collapsing into reductionist philosophical and sociological positivism.

The alienation critique and the ideology critique provide two concrete examples of how a more deliberate engagement with critical dialectics can help the critique of EU law to navigate these pitfalls. These examples were selected because of ‘alienation’ and ‘ideology’ are familiar concepts both in critical EU law scholarship and in the critical theory of society. The alienation critique has its focus on how the individual subject relates both to itself and to the world, whereas the critique of ideology examines EU law from a more systemic/structural perspective. The alienation critique essentially asks ‘does EU law alienate citizens of the Member States?’ and, if so, ‘how does it alienate them?’ The ideology critique asks ‘does EU law have an ideology?’ and, if so, ‘what is that ideology?’ These two examples clarify what needs to change if critical EU law scholars seek to follow the methodological commitments of critical theory, as discussed in the previous part of this section. However, this discussion can only scratch the surface of what the methodological shift from an unmasking critique towards a dialectical critique means in practice.Footnote ¹²⁶

Example I: The alienation critique of EU law

Alienation is a theme that recurs in critical EU law scholarship with some frequency but is not yet fully theorised. On the one hand, the concept of alienation is used as a seemingly self-explanatory critical device with little or no discussion on what it means in EU law. On the other hand, contributions that engage in discussing alienation in more detail do not necessarily do justice to the full potential of alienation critique in EU law scholarship. Both lapses are arguably due to the underdeveloped methodology of critique. In everyday language, alienation can be defined as ‘estrangement’ and ‘withdrawal’.Footnote ¹²⁷ But alienation is also ‘the key concept of diagnoses of the crisis of modernity and one of the foundational concepts of social philosophy’.Footnote ¹²⁸ For this reason, the alienation critique of EU law provides a particularly illuminating example of how critical dialectics can enrich the study of EU law.

The roots of alienation critique can be traced back to the Marxist tradition of social theory and to existential philosophy. Both the Marxist and the existentialist forms of alienation critique explore how self-alienation and social alienation are intertwined.Footnote ¹²⁹ However, they offer profoundly different answers to this question.Footnote ¹³⁰ The classic existential definition of alienation is presented by Sartre in Being and Nothingness.Footnote ¹³¹ For existentialists, the experience of self-alienation stems from our freedom to choose what meanings we give to life.Footnote ¹³² At the same time, alienation from others is viewed as unavoidable because consciousness arguably resists the way in which it is seen by others in inter-subjective relations.Footnote ¹³³ The existential concept of alienation is often commended for how it explains the experience of self-alienation. But existential philosophy and critical social philosophy diverge on what role they assign to an ‘unalienated’ condition in the alienation critique. The existential accounts of alienation imply that alienation constitutes a diversion from authentic experience.Footnote ¹³⁴ For critical theory, the existential critique of alienation is problematic insofar as it depicts political and social life as a cause of alienation.Footnote ¹³⁵ These differences are not just substantive but also methodological. Therefore, the way in which the alienation critique of EU law develops has broader relevance to critical EU law scholarship.

EU citizenship and free movement law is the main context for the alienation critique in EU law scholarship. It was noted early on that:

The presumed link between European citizenship and alienation is also established in the following statement:

Neither of these examples develops the theme of alienation further. However, a more detailed account of alienation in the study of EU law is provided by Alexander Somek.Footnote ¹³⁸ Because Somek’s study on alienation is one of the few attempts, if not the only one, to dig deeper into the meaning of alienation in EU law, this section will use it as a basis for discussing how the alienation critique of EU law would benefit from a more dialectical method of critique.

Somek defines alienation both as ‘the experience of a lack or loss of free agency’ and as ‘the emotional recognition that the free agency is unavailable that is possible under conditions of social freedom’.Footnote ¹³⁹ Somek observes in this context that ‘[i]t remains an open question, however, whether structures of social freedom are part of the ethos of the European Union and of its law.’Footnote ¹⁴⁰ Somek, with reference to Marx, defines rights that individuals derive from EU law as ‘the rights of the egoistic man, of man separated from other men and from the community’.Footnote ¹⁴¹ Following Marx, Somek also links alienation to the relations of economic power: ‘[t]he root cause of alienation is that it is inherent in economic power to transform all economic relations into struggles over economic power.’Footnote ¹⁴² How economic power is generated arguably explains why ‘[a]lienation from others is the root of self-alienation’.Footnote ¹⁴³ This is so because ‘the pursuit of economic power forces one to be indifferent to one’s own needs’.Footnote ¹⁴⁴ However, as will be shown in this section, economic power alone is too narrow a perspective here. In addition to the economic relations of power, another key theme in Somek’s analysis of alienation is that of sociality.

The experience of alienation makes individuals ‘aware of the false realisation of human sociality’.Footnote ¹⁴⁵ For Somek (and Marx), this observation about human sociality translates into a search for a ‘true community’: ‘Through our explicit embrace of our sociality the true community (das wahre Gemeinwesen) would appear before us in virtue of reflective insight.’Footnote ¹⁴⁶ The quest for a ‘true community’ is contrasted with a ‘community in alienated form’.Footnote ¹⁴⁷ Somek is aware that this vision of a ‘true community’ is vulnerable to the charge of essentialism.Footnote ¹⁴⁸ However, instead of looking for a methodologically less essentialist theory of alienation, Somek states that:

Be that as it may, the proposition that the ‘community in alienated form’ is ‘challenged through the anticipation of a community in non-alienated form’Footnote ¹⁵⁰ has an essentialist tone. Besides the essentialist vision of a true and non-alienated community, Somek’s account of alienation problematically links social freedom to a communitarian ethos of sociality.

Somek emphasises that his preferred approach to alienation ‘is essentially conservative, not only because it leaves the market principally in place, but because it looks back to traditions of de-commodified human dealings’.Footnote ¹⁵¹ He mentions Michael Walzer’s communitarianism as one representative of the proposed approach.Footnote ¹⁵² Somek, now drawing on Hegel, envisages that ‘individual freedom can be “actual” only if it fits into an already existing social world’ and that ‘the participants in such an institutional setting recognise their mutual dependence and embrace it either affectionately or in a spirit of loyalty and solidarity’.Footnote ¹⁵³ While Iagree with Somek on the importance of a social/relational perspective on human agency,Footnote ¹⁵⁴ Ifind his approach to intersubjective dynamics problematic. The communitarian ideal of a ‘true community’ offers an oddly idealised picture of human social relations.Footnote ¹⁵⁵ It can even be asked whether ‘traditions of de-commodified human dealings’Footnote ¹⁵⁶ have ever existed, taking into account the human capacity for greed, envy, and egoism. This relates to the earlier observation that placing the analytical focus on economic power relations may easily result in a one-sided picture of both individual and social alienation.

To sum up, the alienation critique of EU law can be problematised on more than one axis: First, confining the analysis of alienation to economic power ignores other potentially relevant power relations. Second, externalising the source of alienation to the processes of commodification may produce an incomplete picture of what constitutes alienation both in relation to the self and in relation to the world. Third, the opposition between a ‘true community’Footnote ¹⁵⁷ and a ‘community in alienated form’Footnote ¹⁵⁸ gives the alienation critique a problematic essentialist tone. This essentialism is further developed in the communitarian vision of social freedom. On top of these observations, there is a parallel tendency in critical EU law scholarship to use the term ‘alienation’ without any attempt to theorise it. By way of provisional conclusion, it can be argued that the alienation critique either remains under-theorised or presents a series of problematic assumptions about social relations and power. But the purpose of this discussion is not to revisit the alienation critique of EU law in substantive terms. Instead, the critique of alienation is used here as an example of how a dialectical method of critique would remodel the critique of EU law.

If the alienation critique of EU law remains incomplete, how would a more dialectical method of critique ameliorate this? This can be clarified by having a closer look at how contemporary critical theory deals with alienation. Rahel Jaeggi’s book Alienation provides an instructive example of this. Jaeggi wants to challenge essentialism that ‘haunts’ the conception of alienation.Footnote ¹⁵⁹ By essentialism, she refers to the substantive ideas of the nature and essence of the human being that characterise the idea of an unalienated condition.Footnote ¹⁶⁰ In Jaeggi’s view, any such ‘theory of good life’ is vulnerable to the ‘charge of paternalism’.Footnote ¹⁶¹ Jaeggi redefines alienation as a failure to ‘appropriate’, that is, to make one’s life one’s own.Footnote ¹⁶² For her, the experience of self-alienation does not follow from ‘a falling away from one’s essence’ but, rather, it equals to ‘a disturbed relation to our own actions, desires, projects, or beliefs’.Footnote ¹⁶³ From this perspective, establishing ‘a relation of appropriation’ to self and the world becomes a means of overcoming alienation.Footnote ¹⁶⁴ Jaeggi maintains that this type of self-realisation is only possible ‘in relation to the social and material worlds’.Footnote ¹⁶⁵ However, she argues that these relations require ‘conceptual clarification’Footnote ¹⁶⁶ and moving away from ‘essentialist conceptions of self and community’.Footnote ¹⁶⁷

Jaeggi’s alienation critique maps how relations of appropriation are ‘disturbed’.Footnote ¹⁶⁸ The methodological negativism of this exercise seeks to clarify the ‘character’ of appropriated relations.Footnote ¹⁶⁹ Here the negativity of critique entails that ‘the positive. .. can only be determined through the mediation of what should not be’.Footnote ¹⁷⁰ Jaeggi suggests that analysing ‘successful and disturbed or deficient relations to self and world’ provides a necessary basis for studying social conditions, institutions, and practices.Footnote ¹⁷¹ Jaeggi, like Somek, views solidarity as ‘the opposite of social alienation’.Footnote ¹⁷² But she maintains that ‘[t]he rich social and ethical dimension of alienation critique can be made accessible without the strongly objectivistic interpretive scheme that is frequently associated with it’.Footnote ¹⁷³ Thus, Jaeggi’s account of social solidarity differs from the more essentialist account of a ‘true community’ in the alienation critique of EU law. Jaeggi’s non-essentialist account of appropriation, together with her negative method, also calls into question the conservative idea that ‘appropriation is always to be understood as a reappropriation of something that already exists’.Footnote ¹⁷⁴

Jaeggi’s non-essentialist theory-building is interesting from the perspective of European integration because the EU cannot compete with Member States in essentialist terms. However, for the purposes of the present article, the important question is not whether Jaeggi’s account of alienation is suitable for studying alienation in contemporary European societies. For instance, it can be argued that Jaeggi’s analysis of social institutions remains underdeveloped.Footnote ¹⁷⁵ Neither was the aim of this brief discussion to fix the meaning of alienation for the study of EU law. Instead, this inquiry into the essentialist and the non-essentialist versions of alienation critique offered just one tentative example of how critical dialectics can change the critique of EU law. The alienation critique of EU law currently circumvents the more methodological questions about whether an unalienated condition is ever possible and how our preferred conception of unalienated life is always contingent, rather than pregiven. Ametacritical standpoint reopens these questions in the study of EU law. The negativity of critique, together with the principle of mediation, further clarifies how any substantive theory of authentic life is preceded by a choice between competing social rationalisations.Footnote ¹⁷⁶ This inquiry into the alienation critique also illustrates how difficult it is to demarcate between the substance and the methodology of critique. But that reinforces, rather than dispels, the argument for strengthening the critical method in EU law scholarship.

Example II: The ideology critique of EU law

The alienation critique provided one example of how the critique of EU law can benefit from a more deliberate engagement with critical dialectics. But it is important to look beyond that example. Adialectical method of critique challenges the very idea of unmasking critique in critical EU law scholarship. This shift away from a purely unmasking critique can be examined by using the critique of ideology as a further example. The concept of ideology, understood as false consciousness, used to explain what distorted emancipatory processes according to the early critical theory. This understanding of ideology is no longer popular because the idea of a critic who is capable of unmasking ideological distortions is vulnerable to the charge of epistemological authoritarianism.Footnote ¹⁷⁷ For instance, Ernesto Laclau explicitly rejects ‘the possibility of a metalinguistic vantage point which allows the unmasking of ideological distortion’.Footnote ¹⁷⁸ Maeve Cooke, for her part, points out that, insofar as ‘theories of objectively necessary false consciousness seem to deny the capacity of human subjects to act in their own rational interests’, they ‘open themselves to accusations of epistemological and ethical authoritarianism’.Footnote ¹⁷⁹ Here the important question is whether the unmasking critique of EU law can avoid this type of authoritarianism without collapsing into uncritical philosophical and sociological positivism. In answering this question, it is useful to have a closer look at how contemporary critical theorists deal with the issue of ideology.

Laclau asserts that a non-essentialist critique of ideology is possible and can provide a viable alternative to ‘new positivism and objectivism’ in social theory.Footnote ¹⁸⁰ For Laclau, ‘[t]here is ideology whenever a particular content shows itself as more than itself’.Footnote ¹⁸¹ Ideology accordingly refers to ‘the illusion that the desired state of completion is actually accessible’ and to the ways in which ‘[d]esire for completion is projected onto some representation of the absent transcendent object’.Footnote ¹⁸² Laclau’s discourse theoretical approach to ideology is closely linked to his neo-Gramscian understanding of hegemonic articulation and struggle in the project of radical democracy.Footnote ¹⁸³ For the purposes of the present article, the important observation is that the critical subject, too, may search for ideological closure by replacing a transcendent object with its historically particular representation. What is particularly interesting for EU law scholarship is that democracy is listed as the main example of ‘transcendent objects to which empty signifiers…refer’.Footnote ¹⁸⁴ Because democracy is a ‘floating signifier’,Footnote ¹⁸⁵ fixing its meaning happens ‘by making of it one of the names of the fullness of society’.Footnote ¹⁸⁶ From this perspective, a ‘shared belief’ that a specific representation of the transcendent object is ‘adequate’ explains how social groups are formed and maintained.Footnote ¹⁸⁷ This highlights that democracy, while important, cannot provide a self-explanatory critical lens for unmasking the deficits of EU law.Footnote ¹⁸⁸

In the study of EU law, unmasking critique promises to expose the ideology or ideologies of EU law. Amore developed methodology of critique complements this by highlighting the need of an ‘intra-ideological’ critique of EU law. For Laclau, ‘[t]he illusion of closure is something we can negotiate with, but never eliminate’.Footnote ¹⁸⁹ This means that ‘what is impossible is a critique of ideology as such; all critiques will necessarily be intra-ideological’.Footnote ¹⁹⁰ But it has been noted that Laclau may proceed too swiftly ‘from the thesis of the necessity of the transcendent object to the thesis of the necessity of belief in its attainability’.Footnote ¹⁹¹ To avoid positivism, Laclau should arguably either clarify the rationality of ‘intra-ideological’ critique or to ‘allow for a reference point for criticism that goes beyond the ensemble of practices in a given social order’.Footnote ¹⁹² In other words, Laclau’s discourse theoretical approach is not able to fully account for what it actually means to replace a purely unmasking critique with a critique that is aware of its own ideological tendencies. This latter question is pressing for the critique of EU law. As will be seen in this section, it reinforces the earlier question of how critique can come into terms with its social embeddedness without losing its critical force.

The critique of ideology persists as an ‘indispensable method’ for critical social theory.Footnote ¹⁹³ However, in contemporary critical theory, the critique of ideology extends to the critical project itself. The notion of ideology continues to refer to distorted forms of social rationality, that is, to ‘social pathologies’.Footnote ¹⁹⁴ But ideology is now viewed both as ‘cognitive’ and ‘material’, including ‘habits and dispositions, in patterns of behavior and social practices’.Footnote ¹⁹⁵ From this perspective, critical rationality becomes distorted if it fails to acknowledge the effects of ‘material conditions and practices’ on conceptual thinking.Footnote ¹⁹⁶ The critique of ideology accordingly explores the ‘embeddedness’ of critical ideas and concepts in social reality.Footnote ¹⁹⁷ Arevised ideology critique can be understood as a form of immanent critique because it can no longer detach itself from the ‘social formation that it seeks to understand, critique, and transform’.Footnote ¹⁹⁸ Similarly, a methodologically sound critique of EU law must deal with its own ideational and ideological tendencies. This means that a plausible critique of EU law is not possible without a simultaneous critique of its ‘own constitutive conditions’.Footnote ¹⁹⁹ Awareness of the inherent links between ‘critique’, ‘self-critique’ and ‘self-referentiality’ is central to a fully developed critical method.Footnote ²⁰⁰ An unmasking critique accordingly becomes ‘a form of self-critique, one in which reason itself is continually put on trial’.Footnote ²⁰¹

In critical theory, the continuing relevance of ideology critique is supported by the view that social change is not unfeasible. For instance, Cooke argues that the concept of ideology is useful to social critique because it draws attention to ‘the difficulties that cognitive change for the better may involve’, as well as to the ways in which the reproduction of ‘social oppression’ may remain ‘hidden from the human subjects concerned’.Footnote ²⁰² In this reading, the critique of ideology reflects the fact that theory and practice cannot be meaningfully separated in the critical project and that ‘praxis’ consists of ‘intentionally guided thought and action aimed at changing the social order for the better’.Footnote ²⁰³ In critical dialectics, methodological negativism explains how critique can detect social pathologies and distortions without falling into essentialist theorisation. But, as has been seen above in this article, the negativity of critical dialectics does not offer the critic any easy exit from the problematic of emancipation. Dismissing the transformative aspect of critique raises the concern that the critical project becomes radically disoriented. Interestingly, however, the unmasking critique of EU law often remains reticent about whether post-critique transformation is possible and/or even desirable. For this reason, the critical project comes across as incomplete in EU law.

This discussion on the problematic of unmasking/ideology critique clarifies what options are available to critical EU law scholarship: The critical project can strive for strong context-transcending validity claims, with all the difficulties that relate to epistemological authoritarianism. Or, critique can retreat into philosophical and sociological positivism and a schematic distinction between ‘facticity’ and ‘validity’. But this would dilute both the diagnostic and the transformative force of critique. Neither of these two options is satisfactory if the critical project takes seriously the interplay between the material and the ideational aspects of social reality. The third option would be to moderate critical claims by more explicitly linking them to particular models of social rationality that steer critique. This, however, is difficult without a more developed critical method. If ‘ideological closure’Footnote ²⁰⁴ can occur as part of the critical project itself, the critical method becomes the only available safeguard against such uncritical tendencies. Therefore, the critique of EU law needs a methodology that is alert to how competing social rationalisations (and pathologies) shape the critical project from the beginning because every critic is socialised at a particular time and place. This essentially means that the critique of EU law must come to terms with its nature as ‘intra-ideological’ critique – a concession that may not be easy for legal scholars. The next section will clarify why and what could be done about it.