Edited by Emilios Christodoulidis, Ruth Dukes and Marco Goldoni
Chapter 22: Facticity as validity: the misplaced revolutionary praxis of European law
If conceived of as a reconstruction of the genesis and history of European legal studies, this chapter cannot but disappoint. The quality of critical legal thought within European studies may never compare with the strength and confidence we recall of the critical legal studies movement of the 1970s. The study of European law is specific in that it is not characterised by schismatic divisions between affirmative rationalisations and critical countervisions; what we instead observe over many decades is a strong and widely shared commitment to the notion that ‘more Europe’ is an unstoppable normative good. Every stage of the integration process has been marked by quests for renewal, yet these have only ever been critical of the direction and mode of travel, and not of travel itself. Our reconstruction accordingly focuses less upon instances of critique, and more upon the underlying question of why European studies exhibit such a large degree of critical continuity, matching the lack of a constitutional moment in Europe. Even the decade of crisis has not shaken the mindset of the wide majority community of European lawyers. Contrary to prevailing complacency we do not believe that we are witnessing the emergence of a new normalcy. We are by no means sure that the crisis will finally bring about a true constitutional moment; but, in a critical moment of our own, we are certain that we are now experiencing a theoretical moment, within which inherited legal beliefs must be questioned and the refoundation of Europe be envisaged.
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