To be sure, this is but a preliminary and crude approximation of the relation between (in)security and political order. To get a handle on this difficult relation, I will introduce two assumptions that also circumscribe what would otherwise be too vast a field of inquiry for the purpose of this paper. The first is that the ordering of political community is, in modernity, a collective self-ordering. Modernity views the ordering of political community as a reflexive process, in the specific sense of the term that I will outline shortly. The second is that while law certainly doesn’t exhaust the concept of political community, legislation—collective self-legislation—is a privileged (but by no means the only) medium by which modern political communities order themselves. Let us begin, then, by considering why collective self-legislation is a form of collective self-ordering, and why it instantiates the general achievement of order—to limit the unlimited.
By asserting that legislation is an act of collective self-legislation I am claiming that legislative acts are acts in the first person plural perspective of a ‘we.’ Indeed, contemporary studies in collective intentionality and action give the lie to theories of social action that view the self of collective self-legislation as a summation of individual acts, while at the same time steering clear of an ontology that postulates that collectives exist independently of individuals and their acts (Bratman 1999). Accordingly, collective self-legislation is a species of collective action; it denotes those acts whereby the members of a polity are deemed (1) to articulate a common interest by referring to themselves as the collective that (2) enacts legal norms and (3) for the sake of which those norms are enacted.Footnote 4
Having outlined in what sense legislation is an act of collective self-ordering, let us now look at how legislation is an act of collective self-ordering, that is, the different ways in which legal norms regulate human behavior. The basic idea, which the legal doctrine captures in terms of the subjective, material, temporal, and spatial ‘spheres of validity’ of legal norms, is that the law orders human behavior by determining, explicitly or implicitly, individually or in general, who ought to do what, when, and where. To the extent that each of these four ways of ordering behavior is part and parcel of a single process of collective self-legislation or self-ordering, the who, what, where, and when of legislation are both subject-relative and relative to a common interest or purpose. Let us briefly examine how these forms of relatedness play a role in the fourfold ordering of human behavior.
The material and subjective spheres of validity of legal norms are subject-relative because the members of a polity view themselves as the collective that ascribes rights and obligations to individuals, and for the sake of whom those acts settle what rights and obligations accrue to whom. Moreover, collective self-legislation also entails that the subjective and material spheres of validity of legal orders are necessarily bounded. The key here is the reference to a common interest. Indeed, a common interest is always determinate: some interests are selected as worthy of legal protection and others discarded, usually implicitly, as legally irrelevant. That the material sphere of validity of legal norms and orders is bounded means, therefore, that only a finite range of rights and obligations is made available by any given legal order, because these rights and obligations give legal content to a bounded common interest. The same holds for the subjective sphere of validity of a legal order, beginning with membership in a collective. In effect, there could be no membership in the absence of a shared interest that allows of determining who is a party thereto and who, by implication, can ultimately be deprived thereof, in case s/he radically contests the commonality of that interest.
If the subjective and material spheres of validity of legislation are reflexively structured and thereby bounded, so also is legal temporality. At one level, the law relies on calendar time, as when visas establish the period during which an alien may sojourn in a polity. But legal time is never only calendar time; the time of the law is first and foremost a subject-relative form of temporality, namely the historical time of a collective. As legal norms are posited from the first person plural perspective of a ‘we,’ they situate human behavior in the temporal arc spanning past, present, and future. These temporal modes appear as a unity to the extent that the members of a community attribute them to themselves as their past, present, and future. Moreover, the reflexive constitution of legal time is linked to the commonality of historical time, in the twofold sense of a time that is shared by and distinguishes the members of a collective. In this fundamental sense legal time is a bounded time; it conditions the use of calendar time to set temporal limits to human action, such as in visas that establish initial and final dates of sojourn for foreigners.
Finally, also legal space is reflexively structured and, consequently, necessarily bounded. That legal space is subject-relative means, in line with collective self-legislation, that it arises through self-closure: a group of individuals view themselves as the collective that posits the boundaries of legal space and for the sake of whom those boundaries are posited. Moreover, the reflexivity of legal space is intimately linked to the claim that it is the common space of a collective, a distribution of places that lends spatial form to what is held to be the common interest of a community. For example, the common space of a polity can be organized in terms of the distinction between public and private places. In virtue of their mutual implication and differentiation, private and public places are locations within a more encompassing spatial unity. Moreover, the way in which the law differentiates these two kinds of places depends on what a polity deems to be the common interest. In this vein, the interpretation of the common interest in a socialist polity clearly leads to a very different differentiation of public and private places than in a capitalist polity. Crucially, the commonality claimed for a legal space also explains why any conceivable polity is necessarily bounded in space. For the claim that a space is common can be contested by boundary crossings that, in the name of a conflicting interpretation of the common interest, call into question the commonality, hence the unity, of a legal space. These boundary crossings intimate an outside in the strong sense of a place that has no place in the unity of places made available by a legal space.Footnote 5
In short, collective self-legislation denotes acts in which a collective orders itself by determining in its own interest who ought to do what, where, and when. To ‘determine’ means, for each of these spheres, to include and (implicitly) to exclude, i.e. to ‘limit the unlimited’ (Cassirer). Indeed, collective self-legislation denotes legislative acts whereby, acting in its own interest, a collective limits (1) who ought to be a member of a polity and, more generally, who ought to be a recipient of rights and obligations, (2) what rights and obligations are available in the legal order, (3) which distribution of places determines a legal space as the common space of the collective, and (4) what shared understanding of past, present, and future enables the members of a collective to view themselves as engaging in an ongoing collective project. Crucially, there is an internal correlation between collective selfhood and the four kinds of boundaries of legal order: as collective selfhood involves a manifold of individuals that refer to themselves as a unity in legislative action, these individuals identify themselves as a unity by way of the fourfold boundaries of legal orders. Conversely, because the legal boundaries of a polity have a reflexive structure, they enable a manifold of individuals to view themselves as a ‘we’, that stands in contrast to ‘others’. In short, the master distinction between collective selfhood and alterity acquires institutional form through the fourfold boundaries of legal orders.
If we now return to the AFSJ, we can see why collective self-legislation is the basic format of the treaties of the European Community and the European Union. Notice, firstly, the reflexive structure that defines the treaties as acts of collective self-ordering: ‘By this Treaty, the High Contracting Parties establish among themselves a European Community …’ (Art. 1 ECT, emphasis added). The phrasing of Art. 1 TEU is well-nigh identical: ‘By this treaty, the High Contracting Parties establish among themselves a European Union, hereinafter called “the Union”’. This reflexive formulation reappears in Article 2 TEU: ‘The Union shall set itself the following objectives: …—to maintain and develop the Union as an area of freedom, security and justice’ (emphasis added).Footnote 6 If Articles 1 and 2 TEU are merged together and formulated in the first person plural form, they read as follows: ‘By this Treaty, we, the High Contracting Parties, agree to establish, maintain and develop among ourselves an area of freedom, security and justice’. Importantly, the reflexivity of collective self-legislation encompasses both the supranational components of European law, under the EC, and the intergovernmental components thereof, under the EU. In effect, the concept of collective self-legislation is sufficiently capacious to accommodate polities that have individuals as their immediate members and interested parties, or as their mediate members and interested parties, as is the case in international treaties by states. For, to recall the definition outlined hitherto, collective self-legislation amounts to legislative acts by which the members of a polity are deemed to (1) articulate a common interest by referring to themselves as the collective that (2) enacts legal norms and (3) for the sake of which those norms are enacted. This is not to deny, of course, that there are significant differences between the supranational and intergovernmental features of European law, and that these differences have a bearing on the AFSJ, which straddles both the EC and the EU. But as the forthcoming analysis is primarily concerned with exploring how freedom, security, and justice are linked to the general structure of political reflexivity, I will use hereafter the generic expression ‘European polity.’
We should also note that the Treaties are acts of collective self-ordering because they posit the boundaries of the European polity in the four senses noted above. In effect, the contracting parties determine among themselves, at least initially, who is a party to the collective, by including Europeans; what is their common interest, by including therein interests such as the ‘harmonious and balanced development of economic activities’ and a ‘high level of employment and of social protection’ (Art. 2 ECT); where this interest is located, by including Europe as an internal market within the global market; and when the common interest comes about, by including a European history within a more encompassing world history viewed as the on-going process of realizing a market. Notice, finally, that the treaties do not—and need not—explicitly state what has been excluded from the European polity in each of these fourfold senses; this is established retroactively, when authorities determine whether what calls for legal qualification falls within the fourfold scope of the European legal order.
These considerations, however briefly sketched, explain the ways in which immigration policy is part and parcel of the ongoing process in which the European polity orders itself by positing the four kinds of legal boundaries that regulate human behavior.Footnote 7