Seminars - Spring 2017

Vies Précaires, Vies égales

Marielle Macé, Centre de Recherches sur les Arts et le Langage (EHESS)

Le 21 février 2017, Marielle Macé a partagé avec le groupe FOLIE ses réflexions sur la situation actuelle faite aux migrant-e-s et leurs formes de vie, notamment devant les vies perdues en Méditerranée. 

À travers une évocation de Fuocoammare (Gianfranco Rossi, 2016), et des propositions qu’elle tente dans Styles. Critique de nos formes de vie (Gallimard, 2016), Marielle Macé a montré que c’est l’attention patiente, vigilante, et déclose aux formes de vie — aux formes réellement prises par les vies — qui soutient la conviction de leur égalité, et peut participer à soulever en nous la décision de l’accueil. Il s’agit de traquer jusqu’à l’intérieur de nous l’idée que certaines vies ne seraient pas tout à fait pleurables, pas tout à fait vivantes, afin de nous en « décoloniser » au profit d’une conviction réelle, c’est-à-dire réellement éprouvée, de l’égalité des vies. 

Une discussion riche s’est nouée autour de l’idée du « formel » de la vie, la manière dont on peut le saisir, l’importance d’appréhender le pluriel des vies (dont l’enjeu n’est pas le dénombrement), de prendre en considération autant les visions des acteurs que les cadres juridiques, et de porter notre attention sur les éléments singuliers mais impropres des pratiques (par opposition aux éléments uniques). 

Forms of Life, Paradigms and Polarization in EU Asylum Policy

Marie Walter, Freie Universität Berlin

On March 10th, 2017, Marie Walter shared her research on EU Asylum Policy with the FOLIE Research Group. She first presented her analytical framework, drawing from Foucauldian discourse analysis to identify the paradigms at play in the policy-building process at the European level: that of controlling the phenomenon of forced migration to prevent so-called abuse of the asylum system and that of guaranteeing protection to refugees considered as genuinely needing protection. The ensuing discussion emphasised that while these paradigms and refugee figures were distinct analytically, they were intertwined and deeply linked in practice.

Turning to the way EU law structures a series of statuses with specific sets of rights linked to the progress of the asylum application procedure, Marie experimented with the applicability to her research of the FOLIE forms of life approach. She outlined seven forms of life linked to the structuration of the asylum process under EU law and its application by Member States, in part chronological, and in part running through asylum trajectories. The ideas of a ‘life in suspicion’ and that of ‘life as a narrative’ tailored for the requirements of the authorities raised fruitful exchanges. 

Law and Hierarchical Forms of Life

Damjan Kukovec, European University Institute

On March 10th, 2017, Damjan Kukovec shared with the FOLIE group his research on law and hierarchical reality, by starting with the question of how lawyers think about social change, inequality and the reproduction of hierarchy. 

Too often, a revised institutional structure is the focus of lawyers seeking social change and overarching ideologies such as capitalism or neoliberalism are said to be the main culprits for the reproduction of hierarchy. Damjan argued that the insufficiency of such analyses calls for rethinking of our understanding of law in its daily operation. He also contended that a different understanding should rest upon the idea of harm or injury, considered as the lowest common denominator of the legal system that can be articulated by any theory, including neoclassical economics. For these purposes, Damjan analysed the center/periphery dynamics in the European Union internal market and argued for a doctrine of dumping. 

The discussion focused on the scope of the proposed understanding of law in its daily operation, the argumentative move from such an ontologically oriented framework to the lenses of center/periphery, the ways in which this framework distinguishes itself from a Coasian approach, as well as the stable versus the constantly shifting character of social patterns.

Forms of Life and Jurisdictional Divides

Judith Resnik, Yale Law School

On March 17th, 2017, Judith Resnik presented her paper ‘Within Its Jurisdiction’: Moving Boundaries, People, and the Law of Migration and more broadly engaged in a discussion with the FOLIE team on the topic of Forms of Life and Jurisdictional Divides.

One of the central concerns in the FOLIE project’s ongoing research is the way in which jurisdictional divides – borders, federations, unions and so forth – take part in constituting forms of life. In dialogue with these lines of inquiry, Judith discussed recent changes in the law of migration as well as the implications of Donald Trump’s travel ban. She has filed amicus briefs on behalf of law professors, most recently before the US District Court for the Eastern District of New York in the case Darweesh et al. v. Donald Trump, President of the United States. 

The seminar discussion concerned the way in which identity relates to the law of jurisdictional divides, as well how the object or subject in movement may condition the legal implications and the political understandings of cross-border movement. 

Forms of Life and Legal Reasoning in EU Law: Two Paradoxes

Joxerramon Bengoetxea, University of the Basque Country

On March 24th, 2017, Joxerramon Bengoetxea presented on the topic of Forms of Life and Legal Reasoning in EU law: Two Paradoxes. He argued that at first sight, forms or ways of life relate to cultural and social dimensions of relationships, whereas legal reasoning relates to an instrumental dimension of institutions. The cleavage seems total. But, here is the first paradox, legal reasoning is also a salient feature of the European way of law, which shapes, and at the same time is embedded in the European way of life, and to this extent legal reasoning is institutional reasoning.

The FOLIE project, in Joxerramon’s reading, draws a strict separation between the “institutional” and the “existential” dimension, but, here is the second paradox, the institutional understanding of legal reasoning is at the same time a fruitful way of conceiving ways of being, ways of living together and ways of existing in Europe, in short, forms of life. An institutional analysis of personhood could serve as an illustration of these paradoxes. Of course, this double paradox depends on a particular understanding of Institutions of Law.

The discussion was centred on the complex question of the stage of legal reasoning at which forms of life could be located or identified, as well as the importance of the embedded interaction between the European and national levels in the manifestations of forms of life in legal reasoning. 

Forms of Life and Legal Reasoning in EU Law

Stefan Goltzberg, Université Libre de Bruxelles

On March 24th, 2017, Stefan Goltzberg presented his work on different forms of legal reasoning. The presentation started from the observation that certain types of legal reasoning specific to some European cultures have been “transplanted” in EU law.  

Stefan focused especially on the “teleological reduction” argument, and its peculiar characteristics as assessed in relation to the “loophole” argument. The analysis relied on examples brought from the opinion of the Advocate General in cases C-434/98 (Council of the European Union v. Silvio Busacca and others) and C-177/15 (Nelsons GmbH v Ayonnax Nutripharm GmbH and Bachblütentreff Ltd.). It was argued that the “teleological reduction” argument has a canonical origin and encounters resistances because of its ethical orientation. 

The discussion focused on the specific characteristics that make it possible to identify a “teleological reduction” as such, on its potential pervasiveness albeit in different forms, as well as on its relationship with the specificity of EU legal reasoning.

Behavioral Analysis and FOLIE: Concepts of Human Agency and Personalized Law

Philipp Hacker, European University Institute

On March 31, 2017, Philipp Hacker presented his thoughts on the interaction between behavioral analysis of law, Big Data, and FOLIE. The presentation started with an inquiry into what concepts of human agency underpin the behavioral turn in EU law. 

Philipp argued that the behavioral approach entails a number of problems, one of which is actor heterogeneity. A novel regulatory technique called “personalized law”, which uses Big Data analytics to tailor legal rules to individual addressees, promises to solve this problem. However, as more and more processes are delegated to algorithms in our society, the concepts of human agency behind algorithm-driven rule making pose severe challenges for future regulation and EU law.

The discussion sparked a lively debate on the extent to which behavioral analysis led to the inclusion of new concepts of human agency into EU law, whether it would allow questioning the very goal of market integration, the impact of personalization on processes of identity formation, as well as the tension between homogeneity and heterogeneity within the personalization process.

The EU's Virtuous Demoicrat: Nomads, Settlers and Mutual Recognition

Kalypso Nicolaïdis, University of Oxford

On April 7th, 2017, Kalypso Nicolaïdis shared with the FOLIE group her work on the ideal figure of EU’s “virtuous demoicrat”, by focusing on the question of Europe’s borders and their consequences. Starting with a definition of the normative underpinnings of demoicracy, Kalypso argued that these are especially reflected in EU’s principle of mutual recognition, which constitutes both a way of relating to others and a mode of transnational governance.

Addressing more specifically the question of political borders, Kalypso contended that the demoicrat’s main considerations in relation to external border-crossing, at least in the case of asylum seekers and refugees, would be similar to those on internal border-crossing: fair procedures, just outcomes and overall consistency. Turning to the actual non-ideal situation in the EU polity, she argued that current problems fall within the domain of non-compliance to EU’s “virtuous demoicrat’s” ideals rather than the domain of unfavorable conditions to their realization.

The discussion addressed a variety of issues, such as the place of migrants’ experiences in the ideal picture, the normative commitments in relation to economic migrants, the main differences in relation to the FOLIE approach (whose starting point is a sociological analysis rather than a philosophical ideal) and its normative position, as well as the kind of anthropological scene underlying the main argument (asymmetry or equality?).

The Patient as an EU Law Figure

Barend van Leeuwen, University of Groningen

On  April 11th, 2017, Barend van Leeuwen gave a presentation on "The Patient as an EU Law Figure". His presentation analysed how free movement law affects the quality of healthcare provided in EU Member States.

By focusing on the judgments of the CJEU in Peerbooms and Elchinov, Barend argued that free movement of patients confronts member states with different definitions of quality of healthcare. Patients act as "explorers" for their national healthcare systems. Free movement law forces member states to engage with the quality of healthcare provided in other member states. There is no evidence to suggest that this process leads to a reduction in the quality of healthcare provided. However, more empirical research on the impact of free movement cases in the healthcare sector is necessary.

The discussion focused mainly on the question of the extent to which patient choice played a role in these free movement cases. Did the patients really have a choice to go abroad, or were they forced to travel abroad by the limits of what their national healthcare systems could offer? Moreover, the discussion also centred around the impact of EU free movement law on the question of who defines good-quality healthcare as well as whether health care and the act of taking care of each other required a sense of shared community.

Existe-t-il dans l’Union un droit à accéder aux soins (de qualité) ?

Estelle Brosset, Chaire Jean-Monnet de la Commission européenne "Droit européen et santé", Université d'Aix-Marseille

Le 11 avril 2017, Estelle Brosset a partagé avec le groupe FOLIE ses réflexions sur la place du registre des droits fondamentaux dans le domaine de la protection de la santé en droit de l’UE, où le prisme de marché intérieur est souvent considéré comme prévalent. 

Le prisme du marché intérieur n’a pas stricto sensu fait émerger de droits fondamentaux. Mais si les droits du patient tels qu’on les connaît classiquement n’existent pas en droit de l’Union, il se construit, notamment à partir de la directive 2011/24 et de la jurisprudence, sur le fondement même du marché intérieur, des formes partielles de ces droits, notamment le droit à ne pas attendre de manière excessive un soin ou à en bénéficier dans certaines conditions minimales de sécurité. De plus, un droit d’accès à la prévention et un droit à bénéficier de soins ont été consacrés dans la Charte des droits fondamentaux ce qui est susceptible, sans les surestimer, d’ouvrir sur quelques potentialités non négligeables. Ainsi, quoique de manière modeste, dans le domaine des soins de santé, la figure des droits fondamentaux apparaît en plus de celle du marché intérieur, soit qu’elle s’y imbrique, soit qu’elle s’y ajoute.

La discussion a porté sur le rapport entre le prisme du marché intérieur et celui des droits fondamentaux et son appréhension en termes de « conciliation partielle », la possibilité d’identifier un droit d’accès à d’autres systèmes de soin de santé là où certain-e-s voient un droit au système de santé, la particularité de l’affaire Petru v Casa Judeteana de Asigurari de Sanatate Sibiu (C-268/13), ainsi que la manière dont l’idée d’une communauté sociale pourrait être utilisée pour analyser les développements en matière de soins de santé en droit de l’UE. 

EU Citizenship Law and the 'Politics of Subjectivity'

Päivi Neuvonen, Univeristy of Turku

On April 28th, 2017, Päivi Neuvonen presented her work on EU citizenship law and the ‘politics of subjectivity.’ The CJEU’s recent case-law has narrowed the gap between the rights of mobile and immobile EU citizens by giving static EU citizens access to rights under Article 20 TFEU in certain situations and by interpreting the rights of economically inactive migrant EU citizens strictly. 

In Päivi’s view, the indeterminacy between EU citizenship as a fundamental status, on the one hand, and as a qualified status, on the other, is an emanation of a deeper crisis of the individual in the project of European integration. With this in mind, her work seeks to rethink the transnational individual in the EU. 

The discussion focused on Päivi’s use of psychodynamic theory to understand the attachment between EU citizens and the ways in which this framework relates to third country nationals. Moreover, FOLIE was interested in the way in which the research highlighted how EU law selectively protects certain personal desires and aspirations rather than merely enabling EU citizens to move around.

Behavioral Analysis of Law and FOLIE 

Anne-Lise Sibony, Université Catholique de Louvain

On May 5th, 2017, Anne-Lise Sibony presented her work on behavioral analysis of law, partly based on the book Nudge and the Law: A European Perspective (Hart, 2015). Over the past decade, behaviorally informed policy-making has gained traction both with governments and international organizations. Taking into account insights from psychology for “making rules smarter” is appealing. Understandably so: governments are interested in making policies more effective especially when this implies non-costly changes. 

Emphasizing that the turn to the behavioral approach in policy-making may not be quite as easy or cheap as early nudge enthusiasts claimed, Anne-Lise argued that this makes behavioral rule-making an even more interesting research topic. She presented the basic tenets of behavioral public intervention and discussed how some questions surrounding it may call for a different approach in Europe as compared to the United States.  

The FOLIE group was particularly interested in the question of the role of knowledge in behaviorally informed policy-making, i.e. whether its operation is acknowledged as taking place not only on the level of policy-making but also on the level of people’s consciousness and their behavior. Other issues addressed in the discussion included the selective attention to behavioral economics in policy-making and academia (overlooking certain behavioral processes), the significance and the consequences of effectiveness and measuring operations in behavioral thinking, as well as the possibility of explaining the success of such thinking in terms of processes of democratic failures. 

The Politics of Forms of Life

Estelle Ferrarese, Université d'Amiens

On May 19th, 2017, Estelle Ferrarese shared with the FOLIE group her work on the Politics of Forms of Life. She argued that one of the elements marking the originality of the idea of forms of life is that it puts in the center of political theory the human being as a living being. Giorgio Agamben’s insights on forms of life, which stress the significance of the experience of use (as opposed to law), show how difficult the promise of putting the living being in the center is. 

The presentation then focused more specifically on the idea of democracy as a form of life and the reasons why one can be reluctant to such an idea. As Estelle argued, it would imply focusing mainly on practice and use, thus giving primacy to the idea of rule at the expense of the force of law. Another reason lies in the overemphasis on citizens’ competencies and the knowledge produced by the public space, leading to a reductive assumption that the power to transform only relates to the power to know. Finally, theories of forms of life tend to give high importance to virtue when conceptualizing democracy, implying an effervescent investment in practices without reflecting on the sedimented nature of institutions. In light of these considerations, Estelle concluded that instead of conceiving democracy as a form of life, we should reflect on the politics of forms of life that democracy must accommodate. 

The discussion focused on the meaning of democratic fervor and its relationship to (in-)equality, the importance of Agamben’s notion of use in theories of forms of life, the plurality of forms of life and the possibility of reflexivity, as well as the significance of “formalism” and its meaning in relation to materiality. 

The EU Forms of Family Life 

Edouard Dubout, Université Paris-Est Créteil Val de Marne (FOLIE member)

On May 26th, Edouard Dubout presented his ongoing research on EU forms of family life. Emphasizing first the specificity of the notion of forms of life, Edouard argued that it has the advantage of not imposing a choice between the natural and the constructed, nor between the individual and the collective. 

Particular attention has been thereafter given to the representations of family life that are produced in the case law of the Court of Justice of the European Union and the European Court of Human Rights. The analysis focused on forms of partnership, parental and child life. Edouard argued that in some CJEU decisions, like Olaitan Ajoke Alarape and Olukayode Azeez Tijani (C-529/11) and H.C. Chavez-Vilchez and Others (C-133/15), there is a shift from market-functionalist considerations to an approach based on the notion of dependency. He analyzed the various facets of this concept, which can relate as much to material wealth as to emotional ties. 

A rich discussion has followed among the members of the FOLIE group on the notion of forms of life, especially on its relationship with the idea of social imaginary (Charles Taylor) and the latter’s impact on practices, as well as the implications of Marielle Macé’s understanding of forms of life for the analysis of legal representations. The extent to which Edouard’s approach is close to Rahel Jaeggi’s conception of forms of life as “instances of problem-solving” was also discussed. Finally, a question was raised as to the possibility of using the idea of attachment instead of dependency for the analysis of the relevant CJEU decisions. 

Forms of Life and Territoriality

Antonio Marzal, Université Paris 1 Panthéon-Sorbonne (FOLIE member)

On June 8th, Toni Marzal presented his work in progress on the relationship between forms of life and the ways in which EU law thinks about the territorial scope of its legislation.  Emphasizing that argumentative practices in EU law have evolved around a set of oppositions, Toni argued that the FOLIE project is an opportunity to flip the opposition between technique and values, which confers a certain subversive dimension to it. This would be particularly relevant since a certain form of bathos would animate the reasoning of the Court of Justice of the EU.

Going through some examples of free movement cases, harmonized conflict of laws rules and issues of territorial scope of application of secondary law, Toni contended that EU law provides a certain groundedness for individuals in a "community of values". This refutes the idea of an utopian mobile individual who would not belong to a place.

The presentation was followed by a rich discussion on the idea of ethics of integration, the ways in which the idea of forms of life has been used for the main argument, the kind of grounding emhasized by Toni, as well as the reasons why territory is the main focus.