The Baldy Center Podcast

The Baldy Center for Law and Social Policy at the University at Buffalo
Episode #42
Podcast recording date: 4/29/2024
Host-producer: Logan
Speaker: Paul Linden-Retek
Contact: BaldyCenter@buffalo.edu

Transcription begins.

Logan:

Hello and welcome to The Baldy Center for Law and Social Policy Podcast. I'm your host Logan. On this week's episode, we are joined by Dr. Paul Linden-Retek, associate professor of law here at UB and co-director of the Buffalo Human Rights Center. In today's episode, we discuss his recently published book titled Postnational Constitutionalism: Europe and the Time of Law. Here is Dr. Linden-Retek. Well, thank you so much for joining us today. I really appreciate your time. As always, I'd like to start off with a personal background, your academic career, and your research focus.

Paul:

Yeah, thanks so much for having me. My name is Paul Linden-Retek. I teach the law school here. I mainly teach constitutional law and international human rights, and together with Professor Tara Melish, I co-direct the Buffalo Human Rights Center. My academic interests began in undergrad around social theory broadly and political philosophy, and I went to law school focusing on international human rights. I was a student director of the Lowenstein International Human Rights Clinic at Yale Law School and stayed on at Yale to pursue a PhD in political science and political theory after that. And while at Yale with a close advisor and mentor, we built out an undergraduate program for human rights in which I taught for a number of years and then began a position here. My research focus at UB is really in comparative constitutional law and constitutional theory and international human rights. And more recently that's tied to some of the research that went into the book in refugee and asylum law. And so my focus really has been trying to weave together those different fields and sort of think about how refugee and asylum law has something to teach us about the structure and the role of international human rights, which in turn has something to teach us about the legitimacy of constitutional law and to bring that together into some kind of account of the picture of comparative constitutionalism as it emerges within the European Union.

Logan:

And we're here to discuss your recent publication titled Postnational Constitutionalism: Europe and the Time of Law, which you published last year. And this is your first book. And for those who are unfamiliar with your recent publication, would you be able to provide a brief overview of your research and its main themes?

Paul:

Yeah, of course. So as you said, the book's title is Postnational Constitutionalism: Europe and the Time of Law, and so postnational constitutionalism is a mouthful, but I think it's the expectation that we can think about constitutional law and political life and political institutions that meaningfully go beyond the exclusions of the nation state and the borders that the nation state has previously drawn. And so I think that there's a hope that the European project, the European Union, the history of European integration is a site where among other things, individual citizens take seriously that their responsibilities to one another are not the only and the exclusive political responsibilities, but they actually have meaningful responsibilities to those living beyond the boundaries, the borders of the state as they're presently drawn. The book is organized in three parts. And so we have this new conception of postnational constitutionalism. What does that mean? Well, there are three dimensions of constitutionalism that I think are most important. One is solidarity. So we think about law in some ways being a medium by which we, in a very differentiated, complex society, can still believe that we're participating in some kind of common project. So there's a solidaristic kind of idea of that law brings us together in a certain kind of way. The second is constitutional interpretation. So we have in some ways a constitutional framework that has a judiciary or has some kind of court system that is interpreting a text, interpreting rules. That constitutional mode of interpretation obviously is engaged in some kind of separation of powers and kind of elevation of high courts that play a particularly profound role in giving us a clue about what our constitutional commitments are. But of course then the final aspect is if not sovereign authority, because we want to kind of get beyond the exclusionary understandings of sovereignty, some kind of account of democratic authority or constituent power, constituent authority. And so those three dimensions of solidarity, constitutional interpretation, and constituent power, constituent authority, those are the three parts that the book tries to kind of reconceive in light of this theme of a temporal time oriented understanding or time sensitive understanding of politics and law. And the book really comes out of a period of coming to grips with the many crises that have gripped the European Union. And so the rule of law crisis, illiberalism and the Democratic backsliding that we see Poland and Hungary, the crisis in the European Union's response to the claims of refugees, namely in 2015, but that crisis has been ongoing. And then also the Eurozone crisis, which is a concern how to actually think about the justice of economic relationships within the European Monetary Union and the structure of the Eurozone, and of course the fraught bailouts of Greece and the imposed austerity as a condition of those bailouts. And so the dissertation, as I was writing, it was very much in the years of the high points of those crises and the book that came out of the dissertation, the book was trying to make sense of how do you address those crises, and how do you diagnose those crises as, in some ways, meaningful failures to think in a truly postnational way. And so the book I think is addressed to all those crises, but really foremost, and the book is framed as a response to the question of what does Europe owe to asylum seekers and refugees? To me, that has always been perhaps the purest, simplest gauge and statement of Europe's postnational commitments. And when I first started writing the project, the image that constantly came to mind was an image by this Italian artist named Blu, and it was a mural that he painted on a forgotten building at this Spanish exclave of Melilla. And Melilla is geographically African, but politically Spanish, politically European. And it's the entry point for a lot of Sub-Saharan migrants and refugees trying to make their way to seek safety and a better life in Europe. It's also been the site of extreme violence. Several years ago, several dozen people were killed and many more were injured trying to get access to Europe in Melilla. And so Blu painted this mural there on a wall of a forgotten building, and the mural is of the European flag, and the European flag is 12 golden stars against a field of blue. But Blu's mural reimagines that flag. And instead of 12 golden stars, Blu's mural has 12 golden barbs of barbed wire. And on the outside of that circle of golden barbs bathed in blue are hundreds of people awaiting entry into the inside of the circle of barbs. And in some ways, they're kind of generic, in some ways they’re anonymous, but some of them have backpacks on and some have children perch on their shoulders. They're all expecting some kind of, if not access, some kind of message coming in from the inside of the circle. And what's remarkable about Blu’s mural is that inside of the circle, there's a void. There's nothing. And I always thought that was an incredibly evocative statement about the state of European politics and law. And so I drew on that image to think about the nature of the European project at this particular point in time. So the book is called Postnational Constitutionalism because it aims to think through what a postnational constitution actually means and demands of people, and specifically what kind of lessons we can draw from the present crises to think about postnational constitutionalism in Europe. And the critique is one that Europe is in danger of building itself out, but actually recreating an exclusionary nationalism in new guise. And so we think about the European project as one of attempting to build out a polity beyond the nation state, beyond the old European national rivalries in a postnational vein. Blu’s image asks us to think carefully about the kinds of, the new kinds, of nationalism and exclusionary forces that European politics and law create. And so taking that as the critical starting point for the book, I kind of center two key ideas that I think hope to reinvigorate European politics and law in a postnational vein. The first comes from Hannah Arendt, which is a very beautiful idea, but kind of a simple or maybe a deceptively simple one, which is the idea that one's political identity is always the product of unpredictable action with other people. And so we don't come to the political table with a fully consolidated sense of who we are. We're always constantly recreating ourselves as we engage others. And then the second idea that I wanted to bring into the book, which is an idea that's an old Marxist idea that's tied to critical social theory, it's reification. And this is an idea that I think was very much in the draft that I was writing in the dissertation, but it really coalesced after I had conversations with Professor Matt Dimick here at the law school, and he's been working on a reification in his own writings. And then the problem reification, very simply, is that we end up mistaking, in our relationships with others, we end up mistaking relationships that are social and historical, relationships among human beings, as timeless, unchanging relationships among things. And so there's all sorts of ways where European law has been blind to that question of reification, and it's allowed itself to fashion judgments in light of a reified conception of the world. And so the antidote to that is to counter reification, to reintroduce more sensibility and sensitivity to the question of social and concrete historical relationships. And that's why the subtitle of the book is Europe and the Time of Law that I want to privilege this temporal view of law that takes seriously lost capacity to reason, to judge in this more temporally attuned way. It's a privilege to be able to actually uncover the ways that we're constantly forgetting, or making other relationships illegible, and to use the resources within law and legal judgment to remember and to make those relationships legible again. And I think that European law does have those resources, but I think we need to isolate those and focus and have an account of what it would mean to recover that sensitivity and that sensibility towards the world that is more temporally attuned, that takes seriously the problem of reification. And from that build out a form of postnational constitutionalism that does justice to that. So that I think is the key move in the book to say that European law and European constitutionalism has to be more attentive to these temporal dynamics, otherwise they risk recreating forms of exclusionary politics, exclusionary nationalism, merely just elevated to a higher level of political organization.

Logan:

At the beginning of your book, you have a dedication to your mother, and it reads “To my mother and her memories of Europe.” And as many of us know, you come from Czechoslovakia, and I know you briefly spoke about how this impacted your book and its content in the past interview with the law school that you had. But would you be able to elaborate on this influence and particularly your thoughts on how coming from this point of view with this personal connection to the region, how that may have changed your book in some way or possibly strengthened your work?

Paul:

Yeah, it's kind of you to notice that. I mean, in the first instance, my mom has always been an incredible champion of, and a defender of the public sphere and democratic politics. And she has incredible faith in other people and a belief that even the hardest problems can be in some ways addressed by talking through them openly and humbly with other people. And so that spirit of openness, going back to that Arendt-ian idea, I think I inherited very much from my mom. And when we were still in Czechoslovakia, she served as the press secretary for Václav Havel, who was the dissident under the communist regime who later became the last president of Czechoslovakia and then the first president of the Czech Republic. And so she's the one who first introduced me to Václav Havel’s texts. And much of the philosophical background in the book is in some ways related to Havel's writing as a dissident. He wrote very much about the humanistic aspirations of Europe and what kinds of politics Europe might be interested in fulfilling. And so my mom very much instilled kind of an appreciation for and a hope in democratic politics that really was attuned to this humanistic aspiration of including people and to be aware how the states and how different forms of politics always risked erecting various forms of exclusion even as they tried to bring people together. And so that kind of sensibility was very much owed to my mom. And then there's a more, I think, personal side of that, which was when we moved to the United States, we were immigrants. We weren't refugees, but we were immigrants. And I think I was still pretty young. I was about five and a half, six. But she, I think faced a difficult time trying to feel at home in a new place while still maintaining some kind of relationship to the place that we had left. And so she, I think, worked very hard in some ways to instill in me an appreciation for Czech history and culture and politics to remember some of the past experience that our family had had prior to moving to the United States to make that very much part of my political education and humanistic education. But I know that there was always a struggle, and it was always a struggle to understand a perspective on the place that you had left, knowing that you're trying to build out a life in a new home. And so there was a certain kind of critical ambivalence that I think was difficult, but it always, I think to me, showed a certain kind of possibility that I always looked to my mom to see different kinds of thinking, different perspectives on both the United States and Prague and the Czech Republic after we had left. So I always, I think, believed and I appreciated in my mom the ability that I think comes a little bit from that position of an immigrant being in between societies, that there's a critical potential there. You begin to have perspectives that are a little bit different than individuals or citizens who are quite accustomed, almost a second nature to embracing the communities in which they live and who don't feel any kind of friction between their own identities and the identities of their communities. And so there was a sense that as difficult as that was, there was a quite wonderful critical sensibility that led to a certain kind of critique, but also kind of a gentleness and not judging too quickly or feeling a little bit more maybe creative and thinking about what new kinds of politics were possible. And so I think my mom really taught me that, and I think about all ways that that immigrant experience then informs the kinds of political perspectives that go into the virtue of postnational thinking. I think it's very much indebted to her.

Logan:

So your book is a part of a series, so could you explain the context of your book in reference to the other titles and work that are part of this collection?

Paul:

Yeah, so the series is the Oxford Studies in European Law, and it's actually quite an old Oxford series that has really accompanied much of the history of European integration. And so the titles in that series are quite varied, and sometimes they focus on very narrow questions of legal doctrine and the ways that European law has developed in very particular fields. But because it's also attuned to the ways that European law over time has assumed more explicitly political and democratic character and has had to face questions of international justice and questions of refugee justice, a lot of those titles are also oriented around various forms of international political theory and critical theory as well. And so I think my title fits into the selection of volumes that are more interdisciplinary, who are trying to piece together various elements of European legal doctrine to say something a little bit more overarching about the constitutional culture and the legality of the constitutional culture of European law.

Logan:

A problem area I always find within academic research and work is that because it takes a substantial amount of time and dedication to put together a body of work that is backed by other research, past theories, and empirical evidence that once these pieces are made and published, they may be a few steps behind current events. Have there been any changes within the EU, whether it be changes in refugee policy, ongoing conflict within or within the surrounding region or otherwise that may have impacted your book, if you were to be still working on it today?

Paul:

Yeah, it's a great question. And when I was finalizing the manuscript, it was just around the time of Russia's aggression against Ukraine. And at that point it was still quite early, and the text was being sent off to the publisher for the first round of editing. And I didn't really have a chance to begin to think about the significant, new political context that in some ways the book would be published within, that this new international geopolitical development really imposed. But I think it's incredibly critical. And I think reflecting on that, there is a way where the more humble, open-ended kind of political identity that I think is so valuable as a humanistic ideal for postnational constitutionalism, for European constitutionalism, I think that is incredibly difficult to sustain in an environment where you have a significant, perhaps existential external threat from an outside power. So there's a long set of reflections that predated Russia's aggression, but there's always, people wondered whether the development of European integration as this postnational project was really only possible set against the backdrop of the European, I'm sorry, set against the backdrop of the American nuclear umbrella and the international European security architecture that was really backstopped by American power. And I think that was always a suspicion that in some ways the willingness of European states to think beyond very narrow conceptions of economic or national security was only because the United States was maintaining the defensive capability to step in should Europe be threatened. And it was basically under the auspices of a global superpower that a postnational dynamic politically was able to take hold. Now, I think that that could in some ways be overstated, but I think there's a grain of truth in that. And I think that the Europeans to their, I think discredit over the years didn't do a good enough job. A lot of social movements at the time did, but certainly through the 1990s and the Bosnian genocide and into the intervention in Kosovo, through to the second Iraq war, I think the Europeans were less than willing to think critically about what kind of international legal order was being administered, developed under the umbrella of the American superpower. And so in many ways, the kind of reckoning with what happens to the ruled space of international order now in light of Russia's aggression, in light of many developments including the war in Gaza. In some ways, a lot of those things were not considered germane for European politics and not necessarily considered germane for the European postnational project. I think that was a mistake because I think now, we're seeing that there's a set of limits to the American international project that hasn't been able to actually consolidate legitimately around some kind of international order. And there's cracks now in that order. And so just to back up a second, I think that there is a sense that there's a new energy now among Europeans to say because of the threat that Russia poses, because of the need to support Ukraine, that becomes the spirit animating European integration. We have to consolidate a European superstate because we need to build capacity both economically and militarily to defend against an outside threat. The tragedy of that is that that's exactly the kind of us versus them Schmidgen logic that I think the postnational project was trying to supersede, to get over. And that really feeds into this supra, super nationalistic new exclusionary nationalism just in greater, in larger form that I think I view as a failure. I would view that as a failure of the European project, but I think many people rightly, in the narrow term view that as necessary to defend some of the values that Europe does stand for. So I think it's a very fragile time for any kind of postnational hopes. I think that what I would say is that I think it is a mistake to think that European values and political identity can only be defended if there's a consolidation around some kind of greater state capacity, great economic capacity of the European super state. I think far better is to think seriously about what the international legal order should look like in the wake of these fundamental disruptions to it that have disclosed a lot of the inadequacies of that order. But how do we actually remake global order, global justice? How do we rethink our conceptions of those things in light of these things? As opposed to giving in to the age that I think a lot of commentators see coming of a renewed great power conflict and great power politics, the rise of regional superpowers. And I worry that if the future of the European Union is one in which it embraces itself as a regional superpower, this project of postnational constitutionalism where precisely the open-ended nature of identity, the humanistic qualities of law, that will get swallowed by an emphasis on security and of internal consolidation and external power. And I worry that that will lead to an increasing threat of conflict and of violence, as opposed to one of a real reconsideration of the grounds of international legal order that takes seriously the questions of global justice and global security that I think, again, many of these conflicts both disclose the absence of previously but now need to be inspirations for rethinking anew.

Logan:

You were part of a talk on March 25th for The Baldy Center. Would you be able to speak on your work and how it aligns with the other guest speaker that was a part of the talk?

Paul:

Yeah, this talk was very special to me. Jiří Přibáň who is also Czech, he teaches at Cardiff University at the law school there in Wales. He is an extraordinary legal philosopher, legal sociologist. He's somebody whose work I had read when I first started law school and when I was writing the dissertation. He's somebody who is, he's not from the school of critical theory necessarily. He's more from the sociological studies of law and systems theory, but he's an incredibly erudite scholar and he's written, over time, very much about European integration and about post sovereign societies, about the challenges of European integration. This talk at Baldy in particular was about the revival of populism, and I think what he called the revival of authentic communities that attempt in the wake of very destabilizing forces of globalization to reclaim some kind of security around authentic conceptions of peoplehood. And of course that flies in the face of experiments with more open-ended conceptions of peoplehood where a nation or a polity doesn't understand membership in this closed quasi-ethnic pre-political register, connects very nicely with the original idea from Arendt about our political identities always being the product, not just the basis of our engagement with others. And so Jiří gave a wonderful talk on the threat that conceptions of authenticity pose to politics that aim to be free of populism and specifically populist exclusion in the wake of globalization. And so my work is trying to engage very much in a similar problem. And I think that the talk that I gave about the book tried to, in some ways, connect with some of that theme and to really center this question of time and temporality as an antidote to that ascription of authenticity. So when we take the way that our relationships are always deeply social and historical and changing, it becomes harder to have any confidence that we can ascribe some kind of definite authentic idea of who's in, who's out, who belongs, who's the proper picture of a citizen and model citizen. And so that sensibility to time and temporality for me is precisely the way that we can build into our politics and law a certain kind of resistance to slipping into the discourse of authenticity that Jiří spoke about. I should also note that Jiří, and since then, it was kind of in the works during that talk, but he's since been nominated for a position on the Czech constitutional court, which is really wonderful. I think he, as a legal philosopher, as somebody who's very skilled and trained in the doctrine, but who doesn't necessarily come out of a profession of being an attorney or a judge might actually contribute something special to the constitutional court.

Logan:

And what's next for you in your research? What are you doing now?

Paul:

So some of the research that I have going forward, it's in some ways following on the heels of the book. And so I have a close friend who is working in Durham in the UK at the law school there, Paivi Neuvonen. And she and I are about to publish a co-edited volume on critical theory in European Union law. And really, I think the framing of the book is indebted to Paivi’s interest in critical theory and what critical theory has to contribute to understanding European Union law and legal scholarship in particular, and to the framing of my book as a way of thinking about a critical theory of European constitutionalism. And so we came together and tried to put together a list of scholars who would each in their own way, center the methodology of critical theory in different areas of European Union law. And so we have various contributors across internal market law, environmental law, climate change, discrimination, and gender discrimination. And so we put together a group of scholars who would speak to various dimensions of European Union law but share some kind of methodological emphasis on critical legal scholarship and approaches to law. And so that's coming up in the near term. And then the real pivot in my scholarship is to focus more explicitly on the question of refugee and asylum law and to do so from a comparative perspective. And so some of that is going to be speaking about some of what we just spoke about the developments in border externalization in the European context, but also how that's happening very much here in the United States as well, and how various developments in international refugee law are hoping to, are under pressure, but really succumbing to this attempt by states in the global north to insulate themselves from responsibility for taking care to process asylum claims faithfully and carefully. And what that means, I think that here's the connection with this book, is that there's a real connection here, not just to protect the rights of individuals, but also to protect the ability of democratic states to maintain that kind of open-ended political understanding of themselves as truly democratic states that don't prejudge membership, that are not slipping into exclusionary forms of politics, that aren't erecting all sorts of barriers that would betray a loss of that democratic spirit that is supposed to be open to otherness and difference and to understand ourselves as always the products of our unpredictable encounters with others.

Logan:

Well, thank you so much for your time. I really appreciate it. You've given me a lot to think about and a lot to chew on, so I really appreciate your time.

Paul:

Thanks so much, Logan.

Logan:

That was Dr. Paul Linden-Retek, and this has been The Baldy Center for Law and Social Policy podcast produced by the University at Buffalo. Let us know what you think by visiting our X, formerly Twitter, @baldycenter, or emailing us at baldycenter@buffalo.edu. To learn more about the center, visit our website, buffalo.edu/baldycenter. The theme music for the season was composed by Matias Homar. My name is Logan and on behalf of The Baldy Center, thank you for listening.

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