The Refugees We Are: Solidarity, Asylum, and Critique in the European Constitutional Imagination

Linden-Retek, Paul (2021) The Refugees We Are: Solidarity, Asylum, and Critique in the European Constitutional Imagination. German Law Journal, 22 (4). pp. 506-533. ISSN 20718322

Abstract

This Article aims to reimagine post-national legal solidarity. It does so by bringing debates over Habermasian constitutional theory to bear on the evolving use of mutual recognition and mutual trust in the EU's Area of Freedom, Security, and Justice (AFSJ), particularly in the context of European asylum law and reforms to the Dublin Regulation. Insofar as critiques of Habermasian �constitutional patriotism� apply to the principle of mutual trust, the Article suggests why post-national solidarity requires fallibilism and dynamic responsiveness that exceed formalized rules of forbearance and respect. On this revised view, legal solidarity guarantees a particular form of adjudication through which individual litigants in a particular case challenge the transnational structural conditions that give rise to individual harm. Because it acknowledges that violations of individual rights are always potentially or in part the result of a collective systemic failure, this conception of solidarity restores meaning to the transformative �transfer� of sovereignty that post-national law had promised. In the field of asylum law, I detail how this application of solidarity would offer a much-needed corrective to structural imbalances in the existing Dublin regime. I conclude with reflections on the principle's application in additional fields of EU law, as well.

Item Type:	Article
Identification Number:	10.1017/glj.2021.28
Uncontrolled Keywords:	Dublin Regulation,Solidarity,constitutional patriotism,mutual trust,post-national law
Depositing User:	Unnamed user with username chikyta
Date Deposited:	10 Jun 2024 06:14
Last Modified:	10 Jun 2024 06:14
URI:	http://repository.ub.ac.id/id/eprint/220714

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