Law and the Other Europeans

The purpose of this article is to emphasize the role that the law plays in determining who is ‘European’ in the new Europe, and who is not. The first part of the article introduces a critical commentary on the present state of EC law with regard to non‐EC nationals. Necessarily, this also includes a discussion of the role of the European Court of Justice, and such instruments as the Schengen Convention. Having discussed the situation of those who are excluded once ‘in’ the Community, it then moves to discuss the fate of those excluded from the Community itself. It suggests that the procedures for controlling immigration flows are essentially extra‐legal, and themselves in breach of Community and international law. The second part of the article introduces a theoretical framework for a discussion of ‘otherness’, applying the writings of such as Julia Kristeva and Hannah Arendt to the particular European situation. It suggests that such writings strike a chord with a number of themes common in critical legal studies literature on exclusion and inclusion. In conclusion, the article suggests that the new Europe must adopt a distinctively post‐modern approach to ‘otherness’, which moves away from established theories of citizenship and human rights, and which is instead based on the kind of ‘humane’ human rights recently advocated by such as Richard Rorty and Joseph Weiler.