Spheres of Transformation, Limits of Integration: Seeing European Union Citizenship Through Luhmann’s Lenses

LAW AFTER LUHMANN: CRITICAL REFLECTIONS ON NIKLAS LUHMANN'S CONTRIBUTION TO LEGAL DOCTRINE AND THEORY, Oren Perez and Peer Zumbansen, eds., Hart Publishing, Forthcoming

24 Pages Posted: 26 Sep 2010

See all articles by Alexandra Kemmerer

Alexandra Kemmerer

Max Planck Institute for Comparative Public Law and International Law

Date Written: January 1, 2010

Abstract

The concept of Union citizenship has proven to be a flexible, dynamic concept, transcending the borders of the Common Market towards a European polity. Union citizenship, increasingly labeled as ‘European citizenship,’ has become for some observers a building block of European identity’, triggered by the ECJ’s much disputed judicial activism. Union citizenship has become a key concept in European constitutional law. The story of its (r)evolution is often told as a narrative of progress. Yet, the concept of Union citizenship is an ambivalent concept, it already expresses what it still is aiming at, it encompasses aspects of reformation as well as of evolution. It is both motivation and expression of an ongoing process of ever closer integration.

(Union) citizenship is not a social (sub-) system in itself, but it lies at the intersection of law and politics, hence at the intersection of two social (sub-) systems analysed and mapped by Niklas Luhmann. Luhmann’s legal theory, with its unique and original take on the evolution of law, on concepts and couplings and on the position of courts in the legal systems seems particularly suitable to analyse the conceptual innovation at the core of one of the major jurisprudential (r) evolutions in the history of European integration.

In times of legally and politically contested integration, in a wider context of fragmentation and differentiation, we can profit from Luhmann’s interest in the ways in which we can see the law perform its function. Luhmann points to law’s boundaries. In his view, law’s function is mainly to stabilize expectations. Law binds time and creates its own stability by operative closure. And yet, as Luhmann makes clear, the law is not blind to its context(s).

Against the backdrop of Niklas Luhmann’s theory, European Union citizenship can be analyzed and questioned in new and fruitful ways. This paper offers no comprehensive analysis, but a few loosely connected observations that could be the starting point of a research agenda.

Keywords: Union Citizenship, European Citizenship, European Law, Public Law, Legal Theory, Niklas Luhmann

Suggested Citation

Kemmerer, Alexandra, Spheres of Transformation, Limits of Integration: Seeing European Union Citizenship Through Luhmann’s Lenses (January 1, 2010). LAW AFTER LUHMANN: CRITICAL REFLECTIONS ON NIKLAS LUHMANN'S CONTRIBUTION TO LEGAL DOCTRINE AND THEORY, Oren Perez and Peer Zumbansen, eds., Hart Publishing, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1682551

Alexandra Kemmerer (Contact Author)

Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany

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