I. Challenging the Binary Oppositions in the Democratic Critique of EU Law

The democratic critique of EU law can be seen as an understandable counter-reaction to the neo-liberal tendencies of the European Economic Constitution. At the same time, it is important to consider what kind of understanding of a political community and a political subject is emblematic of the critical study of EU law. This can be clarified by taking a closer look at how critical EU law scholarship conceptualizes the nature of interests that are protected under EU citizenship law. The mainstream democratic critique proceeds from two main assumptions: First, it depicts EU citizenship rights as apolitical because they focus on protecting private interests; second, conferring rights on non-nationals is seen as harmful to relative homogeneity that arguably forms a precondition for a good democracy. In assessing these claims vis-à-vis EU citizenship rights, it is necessary to revisit the conceptual framework that underpins the democratic critique of EU law. This metacriticalFootnote ⁴² exercise can benefit from considering how feminist political theory encounters the problem of essentialism and the cognate problem of binary categorization.

Essentialism is a fundamental conception in the internal discourse of feminist political theory. The basic notion of essentialism refers to the idea that “essence is prior to existence,” meaning that things can be categorized through their essential characteristics.Footnote ⁴³ Classic liberal feminism is arguably vulnerable to essentialism in so far as it reduces human beings to natural categories.^{Footnote 44} Essentialist feminism fails to recognize the effects of social formation on identity-formation and to take into account how gender and other forms of identity, such as class and race or ethnicity, intersect.^{Footnote 45} In facing this issue, postmodern feminist theory seeks to deconstruct different binary categories in political and philosophical thinking. These oppositions can include, but are not limited to, the distinctions between “male and female; subject and object; public and private; form and substance; mind and body; active and passive; reason and emotion.”^{Footnote 46} The rationale behind this skepticism about binary oppositions is captured in the following statement:

From this perspective, binary oppositions can be examined as discursive categorizations that potentially conceal the unequal distribution of power within a political community. The important consequence is that a feminist challenge to binary oppositions is not limited to deconstructing gender differences. There exists a growing body of scholarship on how feminist jurisprudence can contribute to studying different areas of substantive EU law, including EU constitutional and citizenship law.Footnote ⁴⁸ However, the present Article is interested in how the feminist critique of essentialism can expose unhelpful conceptual structures in the democratic critique of EU law.Footnote ⁴⁹ This analysis problematizes both the normative public/private distinction and the binary opposition between insiders and outsiders in theorizing democracy. As such, it also opens the door for a revised conception of democratic politics in critical EU legal studies.

Viewing the promotion of private interests as a depolitcizing force lies at the heart of the mainstream democratic critique of EU law. The definition of private interests as apolitical is in line with the classic liberal understanding of the public and the private spheres as two distinct realms of human life, of which the former only is relevant to citizenship and democratic politics.Footnote ⁵⁰ The early feminist concern was that the areas of life that were defined as private fell outside the law and, thus, were subject to unregulated power relations.^{Footnote 51} In contemporary feminist theory, the central argument is that inequalities created in the private sphere affect the person’s ability to engage in democratic politics in the public sphere.^{Footnote 52} At first, this critique seems to be fully in line with the concern that EU law constitutes nationals of the Member States as private persons, rather than as citizens and political actors. However, the feminist critique of the public/private distinction suggests that the issue of private interests is more complex than currently implied by the democratic critique of EU law.

Problematizing the categorical public/private distinction also problematizes the premise that protecting private interests under EU citizenship law is automatically apolitical. This point can be carved out by examining the different strands of the public/private distinction. One line of inquiry concerns the definition of public and private. Demarcating between public and private is a matter of interpretation and, as such, often political.^{Footnote 53} It is also clear that the experiences of private and public spheres may diverge, for instance, depending on the person’s “race, class and sexuality.”Footnote ⁵⁴ For this reason, defining something as categorically private or apolitical may uphold the existing power relations in society.^{Footnote 55} Another critical question in relation to the public/private distinction is whether this distinction remains descriptive or whether it also becomes normative.Footnote ⁵⁶ In the latter case, the public/private distinction may contribute to the depoliticization of different structural disadvantages in society.Footnote ⁵⁷ On a more positive note, deconstructing this distinction can make room for a more inclusive notion of political.Footnote ⁵⁸

The feminist critique of the public/private distinction does not directly apply to the democratic critique of EU citizenship law because the term “private” holds different meanings in these two contexts. The mainstream democratic critique of EU law associates the notion of “private” with private economic interests.^{Footnote 59} In contrast, feminist critique has traditionally equated it with the unregulated, above all, domestic/family life.Footnote ⁶⁰ Also noteworthy is the view that the ideological use of the public/private distinction can be seen as a characteristic of neoliberalism in law and governance.^{Footnote 61} From this perspective, the feminist critique would support, rather than challenge, the concerns articulated by the democratic critique of EU law. Yet, the feminist critique of the public/private distinction suggests that defining EU citizenship rights as apolitical, on grounds that they protect private interests, is not the best way forward in analyzing the effects of EU citizenship rights on democracy in the Member States.

In sum, the critique of binary categorizations explains why the democratic critique of EU law should more explicitly distinguish between the argument that EU citizenship may foster harmful individualism, on the one hand, and the claim that EU citizenship rights are depoliticizing because their protect private interests, on the other hand. This is not to say that protecting individual rights could replace political emancipation. But a rigid normative distinction between public and private interests overlooks the fact that the protection of private interests has different implications for the political subject depending on one’s starting point.Footnote ⁶² Recourse to the public/private distinction in defining what is and is not political in EU citizenship rights is therefore vulnerable to the criticism that it over-simplifies the issue of depoliticization within the EU.

II. Moving the Critical Focus from Democratic Externalities to Democratic Internalities

Challenging the ideological distinction between public and private interests reopens the debate on what is political in the interests protected under EU citizenship rights, including the derived rights of EU citizens’ family members. Defining these interests as apolitical may be more harmful from the perspective of disadvantaged groups than from the perspective of the more privileged nationals of the Member States. This means that the critique of the public/private distinction offers “another route to [the] consideration of issues of identity and difference”^{Footnote 63} within the Member States. While the democratic critique of EU law highlights that rights-based inclusion under EU citizenship law fails to meet the standards of democratic inclusion, it pays very little attention to how democratic inclusion may be inadequate, not only from the perspective of outsiders, but also from the perspective of many insiders.Footnote ⁶⁴ Thus, the democratic critique disregards the question of what transformative potential of EU citizenship rights could have in the realm of democratic internalities, as opposed to democratic externalities.

The democratic critique of EU law uses the concept of democratic externality to refer to national democracies dealing with non-national outsiders and other democracies. The assumption that democratic politics must always have boundaries entails that “[m]aintaining a bounded political community gives rise to adverse effects—‘externalities’—for outsiders.”^{Footnote 65} Placing the critical focus on democratic externalities in assessing the effects of EU citizenship rights on democracy is understandable in so far as the democratic critique of EU law aims to prove wrong the idea that “a major shortcoming of the democratic nation-state is the negligence of its external effects.”^{Footnote 66} From this perspective, the so-called argument from transnational effects appears as a claim that national democracies ought to become more “unbounded”—and this objective runs against the preferred conception of a good democracy in the mainstream democratic critique of EU law.^{Footnote 67} But the analysis of democratic externalities is inadequate because it leaves unaddressed the question of negative democratic internalities—that is, of harm caused by factual, even if not formal, disenfranchisement within bounded national democracies.

The democratic critique of EU law does not entirely deny that free movement rights could be viewed as political.Footnote ⁶⁸ However, as has been seen in Section B, the democratic critique rejects the idea that these rights have democracy-enhancing effects within the Member States. This pessimism is connected to the fact that EU citizenship rights primarily protect interests of non-national outsiders who cannot fully participate in the democratic processes in the host Member State. Along with the distinction between public and private interests, the conceptual distinction between insiders and outsiders is central to the mainstream democratic critique of EU law. This distinction seems unproblematic if we adopt the view that all citizens are insiders in their capacity to be full members of a political community, while all non-citizens are outsiders, with no access to such a membership. But the critique of binary oppositions suggests that a categorical distinction between insiders and outsiders is also problematic. That is, recognizing that the private/public distinction may have differentiating effects within a political community accentuates the position of “insiders who are really outsiders”Footnote ⁶⁹ within the EU Member States.

The distinction between insiders and outsiders appears particularly contentious when it is intertwined with the idea that there is a group of insiders whose desire to share their fate stems from their relative homogeneity. Such an assumption of homogeneous insiders undermines the fact that, in reality, both democratic politics and constitutional adjudication need to mediate different group interests. Therefore, binary opposition between insiders and outsiders promotes a misplaced account of virtual representation. The mainstream democratic critique of EU law confines the analysis of interest representation to democratic externalities and to the inclusion of outsiders—although the origins of this concept lie in scholarship that justifies the need for virtual representation from an internal democratic perspective. That a transnationalized form of virtual representation would regard “any democracy as good as any other” insofar as the interests of outsiders are adequately represented,Footnote ⁷⁰ is a peculiar conclusion in light of the fact that the very idea of virtual representation connects democratic legitimacy to how different groups are treated within a polity.

The diversity of life within the Member States, and not just between them, challenges the categorical distinction between private and public interests and the binary opposition between insiders and outsiders as the two key building-blocks in the democratic critique of EU law. These conceptual structures are unhelpful because they obscure the position of disadvantaged insiders within national democracies.Footnote ⁷¹ It is important to consider whether, and if so how, EU citizenship rights affect democratic politics within the Member States. But, due to its focus on democratic externalities, the mainstream democratic critique of EU law cannot fully address the question of what effects EU citizenship law has on democratic internalities within the Member States. By not taking this latter dimension into account in its full complexity, the democratic critique of EU citizenship law presents an incomplete account of the democratic effects of EU citizenship law. This means that it may also fail to recognize where the transformative political potential of EU citizenship rights lies in the Member States.

I. The Theory of Political Judgment as a Challenger for the Democratic Critique of EU Law

Are the conditions for democratic politics secured in the EU Member States? The answer depends on what these conditions are. One way to approach this question is to move the critical focus from the patterns of democratic representation to what it takes for citizens to develop a capacity to exercise political judgment. That a theory of political judgment is needed to understand democratic politics lies at the heart of Hannah Arendt’s political theory. Her argument—that plurality and adopting the standpoint of others through enlarged thinking are preconditions for valid political judgments—challenges the idea of relative homogeneity as the core of democratic politics in critical EU legal studies. However, as will be shown in this section, the culturally un-embedded performative reading of Arendt’s political theory must compete with a communitarian interpretation of Arendt’s thinking, in general, and of her argument about a judging community, in particular.

For Arendt, the two main features of a valid political judgment are non-subjectivity, on the one hand, and particularity, on the other hand. This means that genuine political thought must be other-regarding in a very particular sense.Footnote ⁷³ The concept of enlarged or representative thinking expresses the idea that a judging person must move beyond his or her subjective condition. Arendt locates the origins of representative thinking in Kant, but she suggests that Kant failed to grasp the “political and moral implications” of the critique of aesthetic judgment.Footnote ⁷⁴ Unlike Kant, Arendt embarks on exploring the faculty of critical judgment as a political activity.Footnote ⁷⁵ Obtaining impartiality that is arguably constitutive of critical judgment requires “that one can ‘enlarge’ one’s own thought as to take into account the thoughts of others.”Footnote ⁷⁶ This type of thinking would include “comparing our judgment with the possible rather than actual judgments of others, and by putting ourselves in the place of any other man.”Footnote ⁷⁷ The cognitive faculty that makes this possible is imagination.Footnote ⁷⁸

Exercising political judgment through enlarged thinking means distancing oneself from “subjective private conditions.”Footnote ⁷⁹ Arendt emphasizes that such distancing must not be confused with empathy.Footnote ⁸⁰ At the same time, she argues that non-subjectivity is “closely connected with the particulars.”Footnote ⁸¹ Reconciling the seemingly conflicting conditions of non-subjectivity and particularity happens through publicity, which is understood as “contact with other people’s thinking”Footnote ⁸² and “communicability.”Footnote ⁸³ This means that the validity of political judgment depends on the “presence of others.”Footnote ⁸⁴ Arendt uses the term “common sense” or “sensus communis” to clarify this point about political judgment as something that goes beyond a purely subjective condition.Footnote ⁸⁵ The central question in Arendt’s theory of political judgment concerns what she means by sensus communis as a precondition for enlarged thinking and, thus, for the validity of critical/political judgment. This question is important because a communitarian interpretation of sensus communis would render Arendt’s theory of political judgment largely redundant from the perspective of the present Article.

Arendt’s idea of sensus communis indicates that “I judge as a member of this community and not as a member of a supersensible world.”Footnote ⁸⁶ Some commentators suggest that her references to particularity mean that a judging community is always an ”actual community,” and that the “perspective of real others” is needed for the exercise of critical political judgment.Footnote ⁸⁷ However, it is not self-equivocal that involving the perspective of real others would necessitate a pre-political community or cultural homogeneity in the communitarian sense.Footnote ⁸⁸ It has been noted that Arendt did not cherish any vain hope that what she called “world alienation” could be cured by “cultural relatedness and integrity.”Footnote ⁸⁹ This pessimism may explain Arendt’s emphasis on plurality and performativity in her theory of political action.Footnote ⁹⁰ A radically different interpretation of the judging community will therefore follow from attending to the performative aspects of Arendt’s thinking.

The performative approach to politics holds that the political identity is always coupled with political action.Footnote ⁹¹ As Zerilli puts it, the call is therefore “to rethink … community as that which is at once presupposed and created anew in the practice of judgment.”Footnote ⁹² This reading of sensus communis finds support from Arendt’s own observation that “[t]he solution to this riddle is Imagination … the ability to make present what is absent.”Footnote ⁹³ Although Arendt rejects the idea of an abstract and universal judging community, her vision of sensus communis can be understood as something that is created by the exercise of the faculty of judgment itself.Footnote ⁹⁴ What is important from the perspective of the present Article is that this reconstruction of political judgment supports an anti-communitarian reading of Arendt’s political theory. This is of particular interest to the democratic critique of EU law because it suggests that plurality is a precondition for, rather than an obstacle to, democratic politics.

Arendt also speaks of the “basic other-directedness of judgment.”Footnote ⁹⁵ She further clarifies that “[t]ruly political activities … cannot be performed at all without the presence of others, without the public, without a space constituted by the many.”Footnote ⁹⁶ Arendt’s theory of judgment has been praised for explaining why political judgment benefits from diversity.Footnote ⁹⁷ However, making a connection between plurality and the validity of political judgments raises a set of difficult questions about what a genuinely other-regarding perspective means in this context.Footnote ⁹⁸ Enlarged thinking seems to ignore the fact that inter-subjective relations often consist of asymmetrical power relations.Footnote ⁹⁹ How the other-regarding perspective can accommodate plurality, when the plurality includes inequality or disadvantage, is connected to a much broader question of how Arendt understands the political. Therefore, it is important to clarify how Arendt’s emphasis on plurality relates to her critique of the social and, thus, to her distinction between the private and the public.

For Arendt, it was crucial to distinguish political from apolitical, or, non-political.Footnote ¹⁰⁰ She was concerned about the way in which the “emergence of the social realm” muddles the distinction between the public and the private spheres.Footnote ¹⁰¹ Yet, a closer look at why Arendt defended this distinction shows that her approach to democratic politics is not essentialist in the sense that has been criticized in Section C. Both Arendt’s public/private distinction and her critique of the social emanate from the concern that society undermines the plurality that is a precondition for democratic politics and political judgment. The harmful “rise of society” accordingly refers to the elevation of homogeneity and cultural rootedness as the bases for democratic politics. This notion is captured by the following statement, which sets out that:

Thus, it is possible to reconcile Arendt’s theory of political judgment with the critique of binary oppositions if the analytical focus is placed on how enlarged thinking, as the source of a judging community, affirms plurality—as opposed to affirming the standpoint of those who share the same private, cultural, condition. Moreover, although Arendt’s normative public/private distinction appears problematic from a critical feminist perspective, her non-identitarian approach to democratic politics is in line with it.Footnote ¹⁰³ The important finding that emerges from this discussion on Arendt’s political theory is that, in criticizing EU law for depoliticization, the mainstream democratic critique of EU law somewhat paradoxically draws on propositions that count as social, rather than political. This finding strengthens the argument that the democratic critique of EU law needs to revisit its understanding of democratic politics. That a more plural community might be a more political community also raises the question of whether the presence of non-national EU citizens could enhance the conditions for democratic politics within the EU Member.

II. Pluralizing the Democratic Critique of EU Citizenship Law: Substantive and Methodological Implications

Arendt, too, would presumably be critical of the current state of democracy in the European Union, but her critique would differ from the mainstream democratic critique of EU law in important ways. In particular, Arendt’s understanding of politics as something constructed and her emphasis on plurality as the condition for valid political judgments can be used to rethink the democratic critique in EU legal studies. This is so in spite of the fact that Arendt herself was a firm advocate of the public/private distinction. Arendt’s thinking depicts ”the simultaneous presence of innumerable perspectives and aspects” as the core of the public realm and the sphere of appearance.Footnote ¹⁰⁴ Conversely, the private condition is problematic insofar as it marks the absence of others.Footnote ¹⁰⁵ This means that the “political way of seeing” is not possible without the capacity to “see things from multiple perspectives.”Footnote ¹⁰⁶ It follows that moving the democratic critique from relative homogeneity and cultural rootedness to the conditions for political judgment has both substantive and methodological implications for the critical study of EU law.

Placing the critical focus on what enables nationals of the Member States to develop a capacity for political judgment suggests that EU citizenship rights can have an indirect democracy-enhancing effect within the Member States. The central point in Arendt’s theory of political judgment was that enlarged thinking must not be confused with empathy.Footnote ¹⁰⁷ She emphasized, however, that “human distinctness,” which is a characteristic of plurality, “is not the same as otherness.”Footnote ¹⁰⁸ The inclusion of EU citizens is different from the inclusion of just any non-nationals because EU citizens can hold a unique mediating position between the feelings of empathy, affinity, and solidarity, on the one hand, and a complete lack of sensus communis, on the other hand. From this perspective, the presence of EU citizens can increase plurality as a precondition for valid political judgments, understood in terms of enlarged thinking. The effect of EU citizenship rights is not confined to their direct beneficiaries, but their concurrent democracy-enhancing effect can also extend to non-moving EU citizens.Footnote ¹⁰⁹ Although this effect remains indirect and tentative, it can be viewed as strong—or vague—as the equally indirect and tentative alienating spill-over effect of EU citizenship rights.

It goes without saying that EU citizenship rights alone cannot democratize the project of European integration or uphold the conditions for democratic politics within the Member States. What is nevertheless important is that, from the perspective of democratic theory, the presence and the inclusion of non-national EU citizens does not necessarily have a detrimental effect on democracy within the Member States. On the contrary, interaction between national and non-national EU citizens may enhance citizens’ capacity to exercise political judgment within national political communities. This finding demonstrates that the question of what effects EU citizenship rights have on democracy is more complex than what the mainstream democratic critique of EU law implies. Above all, the democratic effects of EU citizenship law depend on the selected conception of democracy and democratic politics.

It is easy to agree with the democratic critique of EU law when it defends the value of democratic politics. What seems more problematic is that the model of culturally rooted national democracy is often used as an unquestioned starting point for the democratic critique of EU citizenship rights. The meaning of democracy is not unequivocal or singular. Critical democratic theory highlights that the conception of democratic politics cannot be reduced to the institutionalized patterns of representation.Footnote ¹¹⁰ For instance, Zerilli speaks of democracy as an “ongoing practice of creating new institutions and ways of living.”Footnote ¹¹¹ At the same time, different theories of radical democracy even challenge the statist idea of democracy.Footnote ¹¹² These admittedly passing reflections on the meaning of democratic politics illustrate that the mainstream democratic critique of EU law, with its emphasis on relative cultural homogeneity, presents just one possible counter-reaction to the allegedly depoliticizing effects of European integration.

It has been seen in this section that adopting an Arendtian approach to democratic politics can have substantive implications for assessing the effects of EU citizenship rights on democracy in the Member States. But acknowledging that the concept of democratic politics is open for different interpretations also unveils a set of important methodological choices in the critical study of EU law.Footnote ¹¹³ The way in which politics is conceptualized shapes the way in which we pose questions about the membership in a political community.Footnote ¹¹⁴ Similarly, how we conceptualize particularity and difference is constitutive of our preferred conception of politics.Footnote ¹¹⁵ These references to conceptual contingency support the argument that, as a methodological tool, critique can and should expose the contingent nature of different conceptual and normative frameworks.Footnote ¹¹⁶ In EU legal studies, the impasse in extending the critical exercise to the underlying normative assumptions about democratic politics currently undermines the credibility of critique from a methodological perspective.

The missed potential of critique in exposing conceptual contingency is linked to a deeper ambivalence of critical methodology in EU legal studies. What tasks critique can attain depends on what meanings the term “critique” comprises in our thinking.Footnote ¹¹⁷ This can be illustrated by contrasting rejectionist critique with immanent critique.Footnote ¹¹⁸ The basic idea of immanent critique is that the standards of critique are internal to social practices that form the focus of critique.Footnote ¹¹⁹ On the one hand, the immanent critique differs profoundly from transcendental critique. On the other hand, by using the recurrent social and political crises as its starting point, immanent critique can have more transformative potential than a purely internal social critique would have.Footnote ¹²⁰ In EU legal studies, the value of immanent critique lies in the way in which it allows new critical openings that take seriously the gradual transnationalization of social reality. However, if critique becomes purely immanent, it may have difficulties in embracing the perspective of the as-yet-unknown. This would be problematic in the context of European integration because a transnationalized social and political reality is still only just coming into being.

In the end, defining the viable roles of critique also depends on how the relationship between theory and practice is understood.Footnote ¹²¹ In political theory, the notion of performativity challenges the idea of ”metaphysical substance that precedes its expression.”Footnote ¹²² A revised relationship between theory and practice would then need to recognize different “first-order practices,” along with the “second-order conceptual language,” in articulating the aims of critique.Footnote ¹²³ From this perspective, critical democratic theory appears to be an inherently creative enterprise.Footnote ¹²⁴ This positioning of critique resonates with the element of a new beginning in the project of European integration. That European integration “emerged from … an intellectual and philosophical wasteland” after “the moral bankruptcy of Europe” seems irrefutable.Footnote ¹²⁵ The EU accordingly comes across as a transformative, even if not transcendental, project. Bringing these trajectories together demands that the critical inquiry in EU legal studies expands both towards more contextual, presumably immanent, and more creative, presumably transformative, forms of critique. It is problematic if the role of critique is reduced to a singular vision—whether rejectionist or not.