Paul Linden-Retek
Associate Professor of Law and Co-Director, Buffalo Human Rights Center, University at Buffalo School of Law, The State University of New York
Paul Linden-Retek writes and teaches in the areas of constitutional law, international human rights, and critical legal theory, with an emphasis on comparative constitutional law, constitutional theory, European Union law, and refugee and asylum law. His work in these fields has been published in the International Journal of Constitutional Law; Jurisprudence; Global Constitutionalism; the Columbia Journal of European Law; the German Law Journal; Law, Culture, and the Humanities; and the Yale Journal of International Law; and his public writing has appeared in the Boston Review. He is the author of Postnational Constitutionalism: Europe and the Time of Law (Oxford University Press 2023), which reimagines the form and emancipatory aspirations of constitutional law in the project of European integration. His current research examines the externalization of border control policy by the Global North and its implications not only for the protection of individual human rights but also for the legitimacy of state power and international legal order.
Prior to joining the law school, Linden-Retek was a Schell Center Human Rights Fellow at Yale Law School and Lecturer in the Department of Political Science, Yale University; and an Emile Noël Global Fellow at the Jean Monnet Center for International and Regional Economic Law & Justice, New York University School of Law. He previously served as a legal adviser in the Human Rights Section, Office of the Government of the Czech Republic; the Legal Unit, International Civilian Office/EU Special Representative, Kosovo; and the European Union Department, Ministry of the Environment of the Czech Republic. In 2014, he helped to found Yale University's Multidisciplinary Academic Program in Human Rights Studies.
Linden-Retek received his Ph.D. in Political Science from Yale University and his J.D. from Yale Law School, where he served as student director of the Allard K. Lowenstein International Human Rights Clinic.
Paul Linden-Retek writes and teaches in the areas of constitutional law, international human rights, and critical legal theory, with an emphasis on comparative constitutional law, constitutional theory, European Union law, and refugee and asylum law. His work in these fields has been published in the International Journal of Constitutional Law; Jurisprudence; Global Constitutionalism; the Columbia Journal of European Law; the German Law Journal; Law, Culture, and the Humanities; and the Yale Journal of International Law; and his public writing has appeared in the Boston Review. He is the author of Postnational Constitutionalism: Europe and the Time of Law (Oxford University Press 2023), which reimagines the form and emancipatory aspirations of constitutional law in the project of European integration. His current research examines the externalization of border control policy by the Global North and its implications not only for the protection of individual human rights but also for the legitimacy of state power and international legal order.
Prior to joining the law school, Linden-Retek was a Schell Center Human Rights Fellow at Yale Law School and Lecturer in the Department of Political Science, Yale University; and an Emile Noël Global Fellow at the Jean Monnet Center for International and Regional Economic Law & Justice, New York University School of Law. He previously served as a legal adviser in the Human Rights Section, Office of the Government of the Czech Republic; the Legal Unit, International Civilian Office/EU Special Representative, Kosovo; and the European Union Department, Ministry of the Environment of the Czech Republic. In 2014, he helped to found Yale University's Multidisciplinary Academic Program in Human Rights Studies.
Linden-Retek received his Ph.D. in Political Science from Yale University and his J.D. from Yale Law School, where he served as student director of the Allard K. Lowenstein International Human Rights Clinic.
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Articles by Paul Linden-Retek
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 the article with reflections on the principle’s application in additional fields of EU law, as well.
Chapters by Paul Linden-Retek
In this chapter we first consider Shklar’s early book on Legalism in which she distinguishes among aspects of legalism as ideology, creative policy, and an ethos of the law. Shklar’s critique of international criminal law, to which the second half of Legalism is devoted, is being revived today by those who share her scepticism. But this revival misrepresents the subtleties of her position and needs to be balanced against her full-throated defence of the legitimacy of the Nuremberg Trials, which, we will argue, merits consideration along with Hannah Arendt’s Eichmann in Jerusalem.
Over the years, Shklar sought to differentiate more precisely between ‘the rule of law’, which she continued to defend rigorously and ‘legalism’ as a mistaken theory and practice of it. The scepticism of her early work was tempered by her more nuanced analysis of the rule of law in later writings. We turn to an elaboration of this distinction in the latter half of this essay.
Book Reviews by Paul Linden-Retek
Elgar 2023)
Public writing by Paul Linden-Retek
Working Papers by Paul Linden-Retek
This research offers a novel philosophical and legal framework—‘narrative constitutionalism’—for addressing this deficit in transformative political energies. It reimagines the nature of post-national constitutionalism by highlighting the way time necessarily frames constitutional interpretation. Legal claims construct political relationships as open-ended ‘commitments’—connecting obligations to a past with a future that is only partially in view. This framework aims to show how legal reasoning remains authoritative and plural only insofar as it operates at this narrative hinge between past and future.
The project first inquires into the principles of constitutional adjudication and modes of constitutional argument that accompany this diachronic vision of pluralism. Grounded in work by prominent American constitutional theorists, ‘narrative constitutionalism’ attends systematically to the historical development of both legal doctrine and the surrounding socio-political narratives that gives this doctrine its meaning. By understanding constitutional provisions as ‘commitments’ made and re-interpreted in time, the project introduces such historical reasoning directly into constitutional judgment.
Second, the project asks whether such a modality of adjudication can be translated into discrete doctrine. It looks to European citizenship law, immigration and asylum law, labour law, and fundamental rights jurisprudence for key cases that illuminate the stakes of a more (or less) time-sensitive mode of argument. It thereby aims to revive new criteria and doctrinal guidelines for judicial dialogues both horizontally and vertically.
This paper explores how the rights of refugees and the construction of political authority are juxtaposed and mutually implicated in contemporary European law. To guide my inquiry, I connect Hannah Arendt's profound reflections on the perplexities of the Rights of Man in The Origins of Totalitarianism to her later 1958 essay, 'What is authority?'. In that later work, Arendt argues that discourses of 'expertise' and 'sacred founding' inherited from the Greeks and Romans, respectively, continue to mislead modern thinking about the nature of political authority. Such conceptions fail, she believes, because they sever authority from 'immediate political experiences' and thereby seek to insulate it from the 'elementary problems of human living-together'. Insofar as the claims of refugees recall precisely these 'elementary problems', Arendt's vision of recovering modern political authority affirms and perhaps entails her prescient defense of the 'right to have rights'. Appreciating the present limitations and possibilities of European refugee law might thereby be more central to the legitimacy of the European project than is first apparent.
I develop this argument with reference to several lines of cases decided by the Court of Justice of the European Union (CJEU). These examples serve to illustrate how appeals to expertise or to sacred founding regrettably characterize prominent elements of European refugee law and, subsequently, to identify those decisions that suggest a countervailing view. Tracing these various constructions of political authority allows us to see more clearly how Europe's response to the claims of refugees currently threatens—and might yet save—its own political future.
Dissertation by Paul Linden-Retek
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 the article with reflections on the principle’s application in additional fields of EU law, as well.
In this chapter we first consider Shklar’s early book on Legalism in which she distinguishes among aspects of legalism as ideology, creative policy, and an ethos of the law. Shklar’s critique of international criminal law, to which the second half of Legalism is devoted, is being revived today by those who share her scepticism. But this revival misrepresents the subtleties of her position and needs to be balanced against her full-throated defence of the legitimacy of the Nuremberg Trials, which, we will argue, merits consideration along with Hannah Arendt’s Eichmann in Jerusalem.
Over the years, Shklar sought to differentiate more precisely between ‘the rule of law’, which she continued to defend rigorously and ‘legalism’ as a mistaken theory and practice of it. The scepticism of her early work was tempered by her more nuanced analysis of the rule of law in later writings. We turn to an elaboration of this distinction in the latter half of this essay.
Elgar 2023)
This research offers a novel philosophical and legal framework—‘narrative constitutionalism’—for addressing this deficit in transformative political energies. It reimagines the nature of post-national constitutionalism by highlighting the way time necessarily frames constitutional interpretation. Legal claims construct political relationships as open-ended ‘commitments’—connecting obligations to a past with a future that is only partially in view. This framework aims to show how legal reasoning remains authoritative and plural only insofar as it operates at this narrative hinge between past and future.
The project first inquires into the principles of constitutional adjudication and modes of constitutional argument that accompany this diachronic vision of pluralism. Grounded in work by prominent American constitutional theorists, ‘narrative constitutionalism’ attends systematically to the historical development of both legal doctrine and the surrounding socio-political narratives that gives this doctrine its meaning. By understanding constitutional provisions as ‘commitments’ made and re-interpreted in time, the project introduces such historical reasoning directly into constitutional judgment.
Second, the project asks whether such a modality of adjudication can be translated into discrete doctrine. It looks to European citizenship law, immigration and asylum law, labour law, and fundamental rights jurisprudence for key cases that illuminate the stakes of a more (or less) time-sensitive mode of argument. It thereby aims to revive new criteria and doctrinal guidelines for judicial dialogues both horizontally and vertically.
This paper explores how the rights of refugees and the construction of political authority are juxtaposed and mutually implicated in contemporary European law. To guide my inquiry, I connect Hannah Arendt's profound reflections on the perplexities of the Rights of Man in The Origins of Totalitarianism to her later 1958 essay, 'What is authority?'. In that later work, Arendt argues that discourses of 'expertise' and 'sacred founding' inherited from the Greeks and Romans, respectively, continue to mislead modern thinking about the nature of political authority. Such conceptions fail, she believes, because they sever authority from 'immediate political experiences' and thereby seek to insulate it from the 'elementary problems of human living-together'. Insofar as the claims of refugees recall precisely these 'elementary problems', Arendt's vision of recovering modern political authority affirms and perhaps entails her prescient defense of the 'right to have rights'. Appreciating the present limitations and possibilities of European refugee law might thereby be more central to the legitimacy of the European project than is first apparent.
I develop this argument with reference to several lines of cases decided by the Court of Justice of the European Union (CJEU). These examples serve to illustrate how appeals to expertise or to sacred founding regrettably characterize prominent elements of European refugee law and, subsequently, to identify those decisions that suggest a countervailing view. Tracing these various constructions of political authority allows us to see more clearly how Europe's response to the claims of refugees currently threatens—and might yet save—its own political future.