Justice in the EU: The Emergence of Transnational Solidarity
Floris de Witte’s stimulating book, Transnational Solidarity, attempts to derive a notion of European justice from three tiers of transnational solidarity that the author claims exist, or are developing, in EU law. This is an ambitious suggestion at a time when neither an effective EU-level polity nor an empirically-embedded pan-EU solidarity is much in evidence. Obvious recent tests of the EU’s political and social resilience, such as the Greek debt crisis and sharp increases in refugee migration flows, have generated responses from EU institutions and Member States that score badly on unity, fairness or democracy. De Witte focuses upon the asymmetry between the entrenched structures for justice at the Member State level and the claims of justice which increasingly arise across borders but for which the EU lacks a sophisticated institutional machinery. Rather than seeing justice restricted by the parameters of Member States, he suggests that his EU models of solidarity provide an emancipatory mechanism whereby individual citizens are liberated to pursue their “good life.” This goal is based on Sen’s views about the realization of individual choices as central to justice and the role of political institutions1. De Witte accepts that the EU is currently unable to “do” redistributive justice systematically and institutionally. Instead, he sees transnational solidarity as a procedural means whereby justice can be articulated according to the sufficiency of relations between citizens across Member States. He divides these relational commitments into market, communitarian and aspirational solidarities, using case law and EU legislation to substantiate and delimit their scope. The book is thus a welcome addition to the limited legal scholarship to engage with solidarity, a concept much visited in other disciplines2.
Whilst ambitious, the book is not entirely convincing. Given the core explanatory role of solidarity, its theorization is surprisingly confined to around five pages drawn from a rather narrow seam of literature. In essence, de Witte sees solidarity rather generally as the motive to share resources between those with whom there is a particular (and sufficient) relationship. He rejects, and not for any obvious reason, ethno-cultural explanations of solidarity and instead focuses upon solidarity within a shared polity. This allows de Witte to invoke his transnational solidarity notion as a way of reproducing cosmopolitan values through national political frameworks in the absence of a robust EU political space. Solidarity becomes the normative reason for action at the national level but which, at the same time, serves to institutionalize (EU) justice. How “thin” the connections between citizens can be whilst still sufficient to constitute solidarity, therefore, becomes crucial, especially since many historical manifestations of solidarity demonstrate a level of activism and political engagement that seems not yet empirically proven in the transnational solidarities adopted by de Witte.
Solidarity is, accordingly, rather under-theorized and is really a proxy for situations where there is a “meaningful” connection between citizens for the purposes of pursuing justice claims. It is not always clear where de Witte thinks the boundaries of solidarity lie or what criteria necessarily trigger (and legitimate) claims upon resources. In places, especially in relation to communitarian solidarity, de Witte employs notions of “deservingness” to describe that trigger – for example, to explain the different treatment of welfare benefits for migrants who have just stepped off the plane in a host State and those who have lived and worked there for some time. Whilst solidarity indeed connotes moral authority, attaching too much weight to deservingness may spawn irrational, illiberal and inconsistent outcomes in the allocation of resources. Moreover, deservingness runs up against competing claims based on what EU law regards as fundamental freedoms or rights. As de Witte recognizes, EU law largely does not care about motives for moving across borders.
The tripartite division of solidarities at the core of the book is problematic. Although not presented as a hierarchy, it is clear that de Witte sees the first two of these – market and communitarian (or economic and social) – as established in primary EU law, whereas the aspirational category is far less secure or coherent. De Witte deftly analyzes familiar EU case law to flesh out the tension between capital and labor and to provide a robust critique of the failure (as he sees it) of the Court of Justice to strike the balance between market and social values in the right place and to have done so without a democratic mandate. De Witte’s position is similar to many commentators’ analysis of that case law insofar as it reveals the Court paying (not always consistent) attention to the nature of the connection between the migrant and the host State to decide the strength of claim to access State resources. However, the proxies articulated by the Court – “real link” in some cases, “degree of integration” in others – are taken by de Witte to be cyphers for solidarity as he wants to portray it.
The book is more adventurous, but also weaker, in relation to the third (ie aspirational) category of transnational solidarity. It is an odd title to give the classification, although it presumably comes from de Witte’s view that maximizing individual choices is at the heart of justice. A “political” discussion might have been expected if his typology represents descriptors of activities or levels of participation in and access to civil society. Instead, de Witte, in fact, seems to explore the (descending) strength of solidarity bonds given voice by EU law. Or, as he puts it, claims for resources become increasingly conditional according to each type of solidarity. Indeed, his conclusion after analyzing the “aspirational” evidence of case law and policies relating to age discrimination, exporting of benefits, healthcare and education is that those claims can only succeed where they do not threaten continuous availability of entitlement to all citizens. As such, aspirational solidarity is a negative obligation on Member States not to impose limits beyond the protection of the associative commitments to justice that “insiders” have entered into.
Yet, as de Witte concedes, his communitarian examples of group of solidarity are also not blanket entitlements but, rather, depend on the strength of the connection between migrant and host State. As a result, it is hard to discern any real difference conceptually between the aspirational and communitarian categories, since both are conditional, to some degree, and subject to the familiar tool of proportionality to constrain Member State freedom of action. For de Witte, the communitarian category “seeks to reassess national conceptions of belonging, and asks Member States to rethink who the members of the ‘community of care’ are.” Communitarian solidarity accordingly serves as a procedural mechanism to open up domestic citizenship so as to include the “associative social commitments that bind the migrant citizen to the host state polity.” It is hard to see why these arguments do not apply to the aspirational classification, since de Witte does not treat such claims as barred a priori. As such, the difference between the classifications seems only the point at which the demands made upon resources become “too much.” Classifying health or educational examples as aspirational rather than communitarian solidarity is accordingly open to doubt. If the argument is really only about the extent to which national resources are undermined, then that is a familiar proportionality balance and not one of constitutional principle. To that extent, the aspirational label should perhaps be better understood as a proxy for interrogating the range of factors that will prevent an individual from pursuing his or her preferences for the “good life.” De Witte’s typology would be more convincing if the barriers and limits to communitarian and aspirational solidarities were shown to be qualitatively different.
An undercurrent that runs throughout the book is the question of citizenship, and many of the themes and issues about justice and solidarity could equally plausibly be channeled through a debate about the nature and direction of EU citizenship. Although automatic on the holding of the nationality of a Member State, the content of EU citizenship remains elusive and controversial. De Witte’s arguments imply interesting questions about housing solidarity within citizenship, or vice versa. However, it is not always clear whether his arguments refer explicitly to EU citizens or whether he envisages a justice available to all individuals regardless of holding a Member State nationality and whether non-migrants are on the same footing as migrants. As an institution established by the EU Treaties, citizenship occupies a constitutional territory that could be developed by solidarity values. Many of de Witte’s examples are taken from citizenship cases (including ones involving non-citizen family members) but he does not explain why solidarity provides a necessary or preferable analysis over any citizenship focus. Part of the importance he attaches to solidarity is that it forms connections between citizens that are reciprocal – a clear echo of the duties of EU citizens that are mentioned by the Treaties3 but nowhere elaborated. It is frustrating that de Witte recognizes that “there is simply ‘something’ intangible attached to the status of the individual citizen in the European project,” without coming to grips with the tensions between EU citizenship and solidarity as competing or complementary conceptual forces to legitimize extensions of claims over host state resources. If, as de Witte asserts, his concern is for the liberalization of individual “good life” choices, then the cosmopolitan appeal of solidarity is likely to be stronger than the more parochial us/them dichotomy perpetuated by EU citizenship.
Of course, the pursuit of the “good life” might itself be controversial as a cornerstone of justice. De Witte unequivocally states that this is now the EU’s contribution, having already achieved its initial goal of continuing peace in its territory. In his view, transnational solidarity offers the means to check the coercive capacity of the State to inhibit the realization of an individual’s personal choices. But that seems both an impoverished view of the EU’s value and a hugely anthropocentric interpretation of global existence. Where does de Witte’s model place the environment and the future of the planet in the construction of justice and inhibition of personal preferences? How might his themes translate into inter-generational solidarity, sustainability and justice? Marshalling solidarity arguments in order to support self-serving betterment is an unusual construction of the sacrificial and reciprocal elements which often characterize solidarity as an associative commitment.
Although these latter issues stray beyond the remit de Witte sets himself, one of his achievements nonetheless is to pose questions about the nature and justification of the EU project as well as the more specific issues over claims to resources. His argument that solidarity and justice are both relational concepts is at the same time both compelling and disquieting. On the one hand, his examples display a shifting stance by the Court in resolving the boundaries of transnational solidarity by recourse to neoliberal market values subject to limited exceptions. On the other, a highly individualized relational approach based on personal circumstances presents a perpetual constitutional nightmare. But, in the present stage of political evolution, de Witte’s point is that there is no option but for a relational approach because EU structures for deliberating fairness and distributive justice are missing. It is perhaps inevitable that his analysis leads to the rather sanguine implication that not much is possible on the social welfare agenda in the absence of that robust political EU space and resources to go with it. Such justice as there is to be had will remain confined to the procedural kind that opens up national systems, and that those procedures should have coherent and transparent criteria.
De Witte’s book is a thought-provoking and important contribution, though based on particular views of justice and solidarity. His position might fruitfully be tested by empirical research into the extent of solidarity actually felt by citizens to find the breaking-points for reciprocity and resource-sharing.
Reveiwed by Malcolm Ross, University of Sussex
Justice in the EU: The Emergence of Transnational Solidarity
by Floris de Witte
Oxford University Press
Hardcover / 225 pages / 2015