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Dossier Thématique : La citoyenneté sociale à l'heure actuelle : relectures de T.H. Marshall
II- La "citoyenneté sociale européenne" est elle marshallienne ?

Free movement, Social Citizenship, and the Production of the EU’s legal territory as a “Social Milieu.” Reading the Laval case through Foucault

Teresa Pullano

Résumés

Cet article explore la manière dont la liberté de circulation du ressortissant européen affecte les formes de la citoyenneté sociale tant à l’échelle étatique qu’à celle de l’Union. Une double grille de lecture est adoptée. Est abordé l’arrêt Laval sous l’angle de la catégorie de la circulation et de celle de « milieu social » proposée par Michel Foucault. La citoyenneté sociale doit alors être repensée, c’est l’hypothèse défendue, à travers une compréhension renouvelée de la gouvernementalité et du territoire façonné par des personnes circulant et produisant un environnement social (un milieu) à l’échelle européenne. Cette étude traite des controverses entourant Laval : elle aborde la directive sur les travailleurs détachés, le principe de la libre circulation des travailleurs et des services ainsi que la directive sur les services. L’article suggère que l’incitation à la circulation et la gestion de celle-ci à travers les États membres, tant pour les travailleurs que pour les services, inaugure le « devenir territorial » de l’Union européenne.

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Texte intégral

1This paper raises the question of how freedom of movement, attached to EU citizenship, affects forms of social citizenship at the national and at the EU level. It does so through a double analytical lens. It discusses the well-known Laval case through he category of circulation and “social milieu” as proposed by the work of Michel Foucault. The hypothesis I want to raise in the paper is that there is a need to rethink social citizenship through an understanding of governmentality and territory as shaped by people circulating and producing a social environment, or milieu, at the European level.

  • 1 cjue, Grand Chamber, December 18, 2007, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet a (...)
  • 2 S. moisio and J. luukkonen (2015), “European spatial planning as governmentality: an inquiry into r (...)

2I will offer a reading of a specific case concerning free movement of services and of posted workers within the EU, the one of Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet (Laval from now on1). This case, which has been very much debated, is a clear example of how the free movement of services and workers acts as a technique for producing a European territory through law. In doing so, EU free movement law contributes to “establishing Europe as a governable unit2”. In the Laval case, EU free movement law produces a homogeneous circulation space, but at the same time, it also builds a differential space at the continental level. I argue that producing such a space entail rescaling social citizenship as well. Social rights, in connection to labour law, are one of the stakes in the Laval case. I will thus seek to demonstrate that it is possible to read the Laval case not only as a conflict between national social citizenship and the EU’s internal market economic logic as fostered by the nexus between EU citizenship and free movement law. In the following, I contend that this legal and social space can be better understood as a “social milieu”, building up on Foucault's theory. Working with such a category of the EU as a social milieu allows me to address the reterritorialization and the rescaling of social rights and social citizenship at the EU level and to propose the category of “social milieu” as a tool to theorize the question of European social citizenship and its relation to a legal and social territory at the continental scale.

I. Governmentality, Social Milieu, and the Continental Framework of Analysis

3A “social milieu” I understand here to be a particular assemblage of legal, policy and social relations that enables those governmental techniques that produce the element in which circulations can happen. In the following paper I develop a definition of social milieu understood as the spatial and relational environment through which circulations happen and in which a complex of men and things as object of government acquires its reality. In addition, the concept of social milieu is here understood as the environment and the scale that allow power relations to intervene in the natural side of the object/subject of politics, the human body and human masses. The paper focuses on the articulation of a social milieu through which the differential mobility of workers, people, goods and services can be governed. As a consequence, social citizenship is reframed by the effects of such a “social milieu” over national social rights. I argue that a European social milieu is increasingly becoming that specific scale at which we need to address social citizenship. Such as scale is produced through the relation between social rights and the effects of free movement of workers as EU citizens on the process of reterritorialization of law at the continental level. The Laval case thus provides a clear example that reveals the need to reappraise the category of social citizenship through the practices of circulation of citizens at the continental scale rather than as bounded by a national territory.

4The paper starts from three hypotheses :

  • 3 M. foucault, Security, territory, population: lectures at the Collège de France, 1977-78, ed. M. se (...)

5(i) Circulation is a crucial technology of government in the late work of Michel Foucault and in particular in the lecture series Security, Territory, Population3.

6(ii) The management and fostering of circulation of people, goods and services through free movement law is an essential mechanism of governance within the EU. The Laval case reads here as an example of how free movement law acts as a governmentality technique.

7(iii) Circulations reshape the nexus between citizenship, territory, and law. As shown in the Laval case, free movement law intervenes in articulating social citizenship and territory. We need to rethink social citizenship at the European level as the result of practices of circulation within a social milieu that corresponds to a continental legal and material territory shaped by and through circulations.

8If these three hypotheses are justified, then the question arises whether it is possible and useful to use the work of Michel Foucault and the governmentality literature to understand how free movement law in the EU works and its effects on the category of social citizenship.

  • 4 T.H marshall, Sociology at the Crossroads, London, Heneimann, 1963, p. 73.
  • 5 M. powell, « The Hidden History of Social Citizenship », Citizenship Studies, 6:3, 2010, pp. 229-24 (...)
  • 6 Ibid., p. 238.
  • 7 Ibid.

9According to T.H. Marshall, social citizenship defines the core element of the welfare state. Social rights are attached to citizenship, “from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilized being according to the standards prevailing in the society4”. This definition is broad, and it reveals the difficulties of defining with precision the content of social rights and their relation to citizenship. Civic solidarity and equality are two central elements of social citizenship (Powell, 2010, 230)5. All citizens should benefit from an equality of status when it comes to social rights, otherwise, the meaning of social citizenship itself is lost. In the history of social citizenship, the nation-state has been assumed as its natural locus. As Powell writes : “One of the objectives of the national welfare state has been the promotion of national social solidarity (…) and a particular conception of ‘the nation’6”. The process of European integration and the expansion of the status of European citizenship since the Maastricht Treaty has two distinct but intertwined, effects on the institution of national social citizenship. On the one hand, many authors claim that it diffused and dislocated social citizenship : “There has been a process of ‘hollowing-out’ with powers moving upwards to the supra-national level and downwards to the local level”7. The strengthening of supra-national processes would imply a weakening of social citizenship, de-linking the figure of the citizen from both that of the national and the worker. The worker is now ultimately a non-national moving, even temporarily, to another Member State under the umbrella of the EU citizenship status and legislation. In contemporary Europe, and as illustrated by the Laval case, we see a shift from the status of social citizenship as concerning national citizens working within the frontiers of the national state to EU citizens circulating within the EU to work. The worker becomes mobile and crosses the borders of various welfare regimes and labor regulations. This situation raises two questions :

101. How does this new European space of circulations, which is also the internal market, change the status of social citizenship ? Can we imagine social citizenship for citizens who are non-nationals and who move across borders rather than as bounded by the framework of the nation-state ?

112. How does freedom of movement for EU citizens have an impact on national regimes of social citizenship ? Can we still think in terms of separate welfare and labor regimes at the EU level or do we need to think about a de facto common territory of circulations redefining the scale of social citizenship ?

  • 8 M. foucault, Security, territory, population: lectures at the Collège de France, 1977-78, ed. M. se (...)

12More precisely, this work focuses on one aspect of circulation as a legal technique : the ways in which circulations contribute to producing a legal territorial space at the continental level. I argue that this continental space is the relevant scale to rethink conflicts over, and projects to strengthen, social citizenship. On this point, this study's hypothesis is twofold : that the question of territory, understood as social milieu, is central to the governmentality paradigm elaborated by Foucault in Security, Territory, Population8. Secondly, free movement law produces a territory at the level of the EU through the workings of law. This territory becomes the scale at which we need to think social citizenship at the European level as well as its effects on national social rights.

13I use Foucault’s approach to government and law to reframe the scale of social citizenship at the EU level. By “governmentality” I understand here the idea, as elaborated by Foucault, that power techniques and forms of knowledge (in this case legal knowledge) are mutually constituted :

  • 9 T. lemke, “The birth of bio-politics: Michel Foucault’s lecture at the Collège de France on neo-lib (...)

14“(…) the term pinpoints a specific form of representation ; government defines a discursive field in which exercising power is ‘rationalized’. (…) On the other hand, it also structures specific forms of intervention. For a political rationality is not pure, neutral knowledge which simply ‘re-presents’ the governing reality ; instead, it itself constitutes the intellectual processing of the reality which political technologies can then tackle. This is understood to include agencies, procedures, institutions, legal forms, etc., that are intended to enable us to govern the objects and subjects of a political rationality9.”

  • 10 S. elden, “How Should We Do the History of Territory?”, Territory, Politics, Governance 1,1, 2013, (...)
  • 11 Ivi, p. 10.
  • 12 M. foucault, Security, territory, population : lectures at the Collège de France, 1977-78, ed. M. s (...)

15Here I define territory as a juridico-political notion, as “the area controlled by a certain kind of power10”. Thus defined, and following Elden on this point, “territory in distinction (…) seems to be dependent on a number of techniques and on the law, which are more historically and geographically specific” and it can be better understood as a “distinct model of social/spatial organization11”. In my paper, I claim that the redefinition of government through citizens' mobility entails the production of territory as a “natural environment” for political power. This echoes the naturalness of the subjects themselves, defined by Foucault through the concept of population. Security techniques, such as regulation of circulations, contribute to realizing “a power thought of as physical action in the element of nature12”.

  • 13 D. zamora and M.C. behrent (ed.), Foucault and Neoliberalism, London, Polity, 2015.
  • 14 M. dean, “Foucault must not be defended”, History and Theory, 54, 2015, pp. 389-403.

16There is a significant debate on Foucault and neoliberalism, involving a discussion on Foucault’s understanding of the welfare state13. I will touch on it here only tangentially. According to Dean, Foucault should be read as a critic of the post-war welfare state14. However, I do not propose here to discuss Foucault’s analysis of social citizenship. Rather, I will use certain parts of his work on territory, circulation, and milieu to shed light on the contrast between social rights and market imperatives regarding the regulation of the citizenship-worker nexus at the EU level. In the Laval case, we witness a conflict between social citizenship provisions at the national level and market imperatives and their link to EU citizenship law at the continental level. I argue that Foucault’s approach to understanding government beyond the State can help us build an analytic model to rethink social citizenship at the level of this complex territory that is the product of the interaction of national and EU regulations in terms of social rights, citizenship, and free movement.

II. Outline of the argument

  • 15 Commission of the European Union, Directive 96/71/EC of the European Parliament and the Council of (...)
  • 16 Commission of the European Union, SEC(2004)21, Proposal for a Directive of the European Parliament (...)
  • 17 T. pullano, « La citoyenneté européenne : les mesures transitoires concernant la libre circulation (...)

17My argument falls into three main parts. The first part of the article provides a reading of the practices and rights of free movement relating to EU citizenship and EU labour law. This section deals with the controversies concerning the Laval dispute that involved Latvian posted workers and Swedish trade unions. In particular, it discusses the Posted Workers Directive15, the principle of the free movement of workers and services, and the Services Directive16. I suggest that the encouragement and management of circulations of workers and of services across Member States, as it is visible in the Laval case, entail the “becoming territorial” of the EU. By this, I mean that the intersection of national labour law and EU free movement law produces a reconfiguration of national territories that are thus recomposed at the continental level, giving birth to a EU territory17.

  • 18 G. burchell, C. gordon, P. miller, The Foucault Effect. Chicago, University of Chicago Press, 1991.

18In the second part, I argue that territory does not disappear in the variation that Foucault elaborates from a static and territorially fixed account of sovereignty to the issue of managing circulations18. On the contrary, territory is redefined as the medium of political action, both in a relational sense (it is the environment that allows people's coexistence with each other) and in a concrete, natural and physical one. I contextualize this issue by looking at the shift/change from the subjects of sovereign power to the population and within the emergence of security apparatuses. Finally, I concentrate on the concepts of territory, space and milieu on the one side, and on the link between the city's space, circulations, and the “naturalness” of population on the other. In the third part, I defend the main advantages of the Foucauldian paradigm when applied to free movement of services and workers in the context of EU law as it appears in the Laval case.

  • 19 S. mezzadra and B. neilson, Border as Method, or, the Multiplication of Labor, Durham, Duke Univers (...)

19The territory produced through circulations can be understood as the milieu, the set of material and legal relations that make this same governance possible. Therefore, mobility in the context of EU law in general and the Laval case in particular, is differential and grounded within a material set of techniques and practices. A space of circulations, therefore, does not equate to a homogeneous, flawless and borderless space. On the contrary, circulations within the territory of the EU are uneven : some people cannot circulate at all, while others have all the freedom to do so. This article, working with Foucault and EU law, investigates the spectrum that separates total immobility from total mobility. People can circulate according to various degrees of freedom and, more relevant even for the purpose of the present argument, circulations produce an uneven territory that reshapes the borders of the Member States, thus entailing what Mezzadra and Neilson call “the proliferation of borders”19. With that concept, they refer to the idea that in the present stage of globalization borders multiply, rather than decrease, producing further lines of differentiation with respect to the classical unit of the nation-state, and they also undergo a series of complex transformations the two authors describe in detail in their book.

III. Free movement as a technique of government in Europe : the Laval controversy

  • 20 T. pullano, La citoyenneté européenne : un espace quasi étatique, Paris, Presses de Sciences Po, 20 (...)
  • 21 N. N. shuibhne, “The Social Market Economy and Restriction of Free Movement Rights: plus c’est la m (...)

20Free movement of citizens, workers, non-citizens, capital, services, and goods is a central element of European Union organization and government20. In this paper, and in line with the proposed governmentality approach, I consider the issues of freedom of movement of workers and services and their impact on social rights as they are dealt with in the Laval case as techniques of government. The Laval case is analyzed here as an example of how circulations produce territory at the European scale through the legal and geographical redefinition of national territories. Free movement law is considered as a technique to manage circulation at the EU level and, finally, as producing a different ensemble at the continental level that becomes the reference for understanding social citizenship at the EU level. While the Laval and its “twin” case, the Viking, have usually been studied as examples of the binary approach of the Court of Justice of the European Union21, the reading I propose is a different one. I argue that, in practice, EU law produces a new “social milieu” or a new scale that affects the key principles of social citizenship at the national level and, de facto, alters their meaning. This new articulation between free movement law, and thus circulation, and national social rights is the terrain upon which social citizenship, both at the national and European levels, needs to be understood at present.

  • 22 Y. thomas, M.A. hermitte M A, P. napoli, Les opérations du droit, Paris, Seuil, EHESS, 2011.
  • 23 A. thomas, “Degrees of Inclusion: Free Movement of Labour and the Unionization of Migrant Workers i (...)

21The emblematic nature of the Court of Justice of the European Union’s judgment (ECJ from now on) is the reason why I have chosen to analyse it drawing on Yan Thomas’s approach of the operations of law and the Foucauldian approach of law as tactics22. The link between workers, mobility, free competition within the EU internal market and social rights is still a very contested one. Thus this vexed and famous case speaks to an issue - the nexus between workers’ circulation within the EU and social citizenship - that is a central battlefield for the organisation of the European space and of its government. Indeed, “immigration and the free movement of labour have moved to centre stage in recent public debates in many European countries”23.

22The Laval case demonstrates how free movement law produces uneven mobility and a differential space managing circulations as well as, indirectly, social rights, thus addressing the question of the how rather than the why, which is central to the governmentality perspective. The encounter between specific national labour markets and laws concerning social rights, on the one hand, and the freedom of movement attached to EU citizenship and the common market, on the other, produces a re-articulation of law, governance and territory that redefines the question of social citizenship. Moreover, I propose an interpretation of the Laval case that goes beyond the classical interpretation of its judgment as imposing free movement of services and of posted workers over social and trade unions’ rights. We can read this judgment as an example of a de- and then re-territorialization of social citizenship, law and governance through free movement and the fostering of circulations. Member States’ labour and social rights and norms are re-articulated through the double process of homogenisation through free movement and of re-differentiation through the ways in which freedom of movement of workers and services impacts specific national labour and social norms.

  • 24 W. walters and J.H. haahr, Governing Europe: discourse, governmentality and European integration, N (...)
  • 25 S. reynolds (2016) Explaining the constitutional drivers behind a perceived judicial preference for (...)
  • 26 See Opinion of Advocate General mengozzi (supra) in the Laval case, para. 260.
  • 27 J. malmberg and T. sigeman, “Industrial actions and EU economic freedoms: The autonomous collective (...)

23The Laval case as a particular example of the ways in which the legal technique of free movement is used as a strategy of government24, is a fruitful terrain for understanding and testing Foucault’s categories. This case is a reference point in the literature on free movement of services and workers and social rights because the ECJ gave priority to free movement rights “over fundamental rights and connected social concerns”25. The dispute involved a Latvian construction company, Laval un Partneri, who had won a contract to rebuild a Swedish school in the Stockholm suburb of Vaxholm, and two Swedish trade unions operating in the field of construction, Byggnads and Bygettan26. Laval did not sign the Swedish Construction Federation collective agreement with Byggnads This is particularly relevant since in the Scandinavian model the regulation of the labour market is determined by voluntary collective agreements27. The firm employed Latvian workers, whose hourly pay rate was significantly lower than the Swedish standard. Swedish trade unions claimed that the salaries of the Latvian posted workers in Sweden needed to be equal to the Swedish ones, and that Swedish law should apply. Since Laval refused to come to an agreement with Byggnads and to apply the terms of the national agreement, Swedish trade unions started a blockade of Laval’s activities. In December 2004, fifty Swedish workers gathered outside the Laval construction site preventing Latvian workers from entering.

  • 28 european union, Consolidated Versions of the Treaty on European Union and the Treaty on the Functio (...)

24On the 7th of December 2004, Laval un Partneri filed a case with the Swedish Labour Court. In February 2006, they left Sweden as their losses were too high. The Swedish Labour Court decided nevertheless to ask for a preliminary opinion by the ECJ before delivering their final ruling. The ECJ stated the priority of the EU principles of free movement of services and the EU regulations concerning the conditions for posted workers over the right of trade unions to attempt, by means of collective action, to force a provider of services established in another Member State to enter into negotiations on pay rates for posted workers and sign a collective agreement. Art. 56 of the Treaty on the Functioning of the European Union (TFUE) prohibits any restrictions on freedom to provide services within the Union “in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended”28. Freedom to provide services is, together with the freedom of movement of people, of goods and of capital, one of the “four freedoms” regulating the internal market.

  • 29 U. belavusau, “The Case of Laval in the Context of the Post-Enlargement EC Law Development”, German (...)
  • 30 commission of the european union, Directive 96/71/EC of the European Parliament and the Council of (...)
  • 31 Ibid., Alinea 13.

25The Laval affair has been widely discussed29. In particular, the literature has focused on the contradiction, present in Laval, between the principle of freedom of services and movement of workers, on the one side, and the fundamental right to collective action and equal treatment, on the other. Two main legal instruments shape the ECJ judgment : The Posted Workers Directive and the principle of free movement of workers and of services. The core issue to which the Directive 96/71 on posted workers responds is that “(...) the trans-nationalisation of the employment relationship raises problems with regard to the legislation applicable to the employment relationship30”. In this Directive, EU law is used as the instrument to coordinate Member States’ laws “in order to lay down a nucleus of mandatory rules for minimum protection to be observed in the host country by employers who post workers to perform temporary work in the territory of a Member State where the services are provided”31. Circulations of services and workers within the internal market challenge the traditional link between labour legislation and its application on the state’s territory.

  • 32 Commission of the European Union, SEC(2004)21, Proposal for a Directive of the European Parliament (...)

26A “posted worker” is employed in one EU Member State but sent by his employer on a temporary basis to carry out his work in another Member State. Within the framework of the Posted Workers Directive, it is the law of the Member State where the worker carries out his or her activity that should apply. Nevertheless, the application of this principle is more complex in practice because of the particularities of national labour markets. In the case of Sweden, there are no universally defined minimum rates of pay, since they are subject to collective agreement. In addition, in Laval, the ECJ overstretched the principle of free movement of services and of intra-European competition with respect to the application of national labour rules (para. 56). As a consequence, the Laval judgment partially reversed the 2006 political debate and decisions concerning the Services Directive32.

  • 33 Ibid.
  • 34 M. höpner and A. schäfer, “A New Phase of European Integration: Organised Capitalisms in Post-Ricar (...)
  • 35 Ibid.
  • 36 A.C.L. davies, “One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ”, Industria (...)

27With the aim of integrating and liberalising services within the internal market, the EU Commission proposed a new Services Directive in 2004 that introduced the principle of the country of origin33. Art. 16 of the 2004 version of the Services Directive stated that the providers of the services are subject only to the national provisions of their Member States of origin, and that it is the duty of the Member State of origin to supervise the service providers’ activities and compliance with the law. This point immediately produced a strong political reaction in many of European Member States. As a result of the political struggle, an amended version was approved by the Parliament and by the Council in November 2006. The principle of the country of origin was deleted. However, one of the consequences of the new Directive was that “Member States have to document and justify any restrictions they impose on foreign suppliers to maintain the public interest, such as the protection of workers, public health, the protection of the environment or the protection of consumers34”. The Laval judgment interprets the 2006 Posted Workers Directive in a controversial way since it ignores the specificities of the Swedish labour market and thus allows the Latvian company to set its own wage structures. In this way, the ruling “effectively restored the country-of-origin principle for all regulations that go beyond those explicitly mentioned in Article 1 (3) of the Posted Worker Directive35”. It is important to stress the fact that, in the ECJ interpretation given in Laval, the Posted Workers Directive has a direct horizontal effect on private entities, such as trade unions, whereas in general Directives cannot have such a direct effect36.

  • 37 J. dølvik and J. visser, “Free movement, equal treatment and workers’ rights: can the European Unio (...)
  • 38 C. woolfson, “Labour Mobility in Construction: European Implications of the Laval un Partneri Dispu (...)

28The other instrument, through which the ECJ constrains the actions of Swedish trade unions, is the principle of freedom to provide services in the internal market. This principle is defined by art. 56 TFUE. Freedom to provide services cannot be put in danger by collective action : this is the reasoning that the Court expresses at para 98 of its judgment. As Dølvik and Visser remark, the Court establishes in this way a reverse discrimination between national and foreign industrial activities, since the former will be more exposed to collective action than foreign companies that are temporary providing services37. The result of this judgment is the production of a differential legal and territorial space, where temporary mobility of labour and of services is actively encouraged. The prevalence of the principle of free movement of services and workers over the fundamental right to strike has been widely commented on. Authors acknowledge a conflict between freedom of movement and respect for fundamental rights, such as the right to strike. Following that, comments focus on the tension between neoliberal and economic logics of opening and the European tradition of national welfare states38. Using a Foucauldian approach, as I argue in this article, we can analyse these conflicts as rooted in a variation of the modes of government and of the forms and structures of social rights political power and of political subjectivity.

IV. Law as tactics

  • 39 B. golder, Re-reading Foucault, London, Routledge, 2013; B. golder, “Foucault’s Critical (Yet Ambiv (...)
  • 40 M. foucault, Security, territory, population: lectures at the Collège de France, 1977-78, ed. M. se (...)
  • 41 Ibidem.
  • 42 Ibidem.

29The role of law in Foucault’s work is a widely debated one39. Here, I read Foucault’s understanding of law as an integral part of governmental strategies. As Foucault argues in the fourth lecture of Security, Territory, Population (henceforth STP), while describing the emergence of the problem of government in the XVIth century, law can be interpreted as a tool for arranging the scene of power itself. If the framework of government is a “way of arranging (disposer) things in order to lead (conduire) them (…) to a suitable end40”, then “it is not a matter of imposing a law on men, but of the disposition of things, that is to say, of employing tactics rather than laws, or, as far as possible employing law as tactics41”. In this same passage of the lecture, Foucault writes that “law recedes” or “rather, law is certainly not the major instrument in the perspective of what government should be42”.

  • 43 N. rose and M. valverde, “Governed by law?”, Social & Legal Studies, 7,4, 1998, pp. 541–551, p. 542
  • 44 K. walby, “Contributions to a Post-Sovereigntist Understanding of Law: Foucault, Law as Governance, (...)

30I take Foucault’s idea of law as tactics as a set of technologies for arranging relations in society. In this perspective, I suggest that the “legal complex”, as Rose and Valverde name “the assemblage of legal practices, legal institutions (…) discourses, texts, norms and forms of judgment”, is part of governmentality technique43. The question then becomes one regarding the “workings” of law. Law is here understood as a set of acts and of techniques, thus bringing together the “law as governance” approach, as elaborated on the basis of Foucault’s work, and the approach of the legal acts and operations derived from Yan Thomas’s work on “les opérations du droit” (legal operations)44. What is the interaction between law and territory in Foucault’s work ? Elden argues, and rightly so, that the question of law is central in Foucault’s understanding of territory as a juridico-political concept.

  • 45 M. valverde, “Jurisdiction and Scale: Legal Technicalities as Resources for Theory”, Social & Legal (...)
  • 46 B. de sousa santos, “Law: a map of misreading. Toward a postmodern conception of law”, Journal of L (...)
  • 47 M. valverde, “Jurisdiction and Scale: Legal Technicalities as Resources for Theory”, Social & Legal (...)
  • 48 Ibidem, p. 142.
  • 49 M. foucault, Security, territory, population: lectures at the Collège de France, 1977-78, ed. M. se (...)

31The literature on law and space is extensive. In particular, the concept of jurisdiction is closely associated to the one of territory. Within critical studies on law and space, Valverde discusses the relation between governance, law and jurisdiction. She points to how the work in the field of legal governance can contribute to understanding how the historically different mechanisms of “jurisdiction” can enrich social theory’s understanding of “scale”45. Following the seminal article by de Sousa Santos46 on how law redefines postcolonial space, Valverde focuses on law as a mapping exercise. Moreover, the interaction between different legal orders is defined as “inter-legality” : “The fact that differences in legal scale appear as technical matters on a par with a mapmaker’s choice of cartographic scale means that the quite heterogeneous modes of governance carried out by different legal assemblages appear to coexist without a great deal of overt conflict47”. The articulation of different legal orders over time and over space through “the everyday workings of jurisdiction – which exercise power continuously whether or not anyone is noticing it or challenging it – tend to naturalize the simultaneous operation of quite different, even contradictory, rationalities of legal governance48”. We are back to Foucault’s understanding of law as tactics for “the disposition of things” or “arranging things so that this or that end may be achieved49”. Thus, I argue, law as tactics operates through “a physics of power” and the production of territory as milieu.

32The above section of this article offered an interpretation of the role of territory and law in STP. In the next part of this article, I propose to use Foucault’s conceptual framework, as I have analysed it, to interpret the workings of EU law on free movement of services, of citizens and their impact on national labour and social legislation as a set of tactics that governs by producing a territory as a “social milieu” through circulation.

V. Circulations and transformations of territory : from a static to a nomadic account

33In this section, I concentrate on the shift from a static account of government as ruling over a closed territory to the problem of governing mobile subjects as theorized by Foucault in STP. Concerning social citizenship, the question arises of how it is possible to rethink social rights not for static subjects but for moving ones.

  • 50 Ibidem, p. 65.
  • 51 Ibidem, p. 176.

34Circulations are the central techniques through which the shift from territory as land to territory as a milieu happens. It is indeed during the xviith and xviiith centuries that the problem of government changes : “It is no longer that of fixing and demarcating the territory, but of allowing circulations to take place50”. The question Foucault deals with is the changing legal and political configurations of territory through history. In an interview for the journal Hérodote, Foucault says that : “Territory is no doubt a geographical notion, but it’s first of all a juridico-political one : the area controlled by a certain kind of power51”. The hypothesis of this paper is that territory as a juridico-political structure of governmental organisation is redefined as the result of circulations. This, in turn, redefines social citizenship as relating to a space that is continental, inter-national and especially governed through the nexus between law and circulation. Territory as a social milieu is, as I argue, central to the practices of governmentality and of social citizenship.

  • 52 Ibidem, p. 64.

35I shall now turn my attention to how Foucault defines the concept of “circulation”. Circulation means “movement, exchange, and contact, as form of dispersion and also as form of distribution52”. The main question here is “how should things circulate or not circulate ?” : we therefore need to pay attention to modalities of circulations and to their differences and variations. I distinguish two meanings of “circulation” in STP : a specific and a descriptive one. In the specific sense (CS), circulation refers to the regulation of a social milieu, that is of an environment within which natural phenomena concerning people and things can take place freely. Circulations, in a more descriptive sense (CD), play an important role in connection to sovereignty and discipline as well. They perform an economic function, since they respond to the need of increasing trade and of ensuring the material prosperity of the state. In this sense, circulation is connected to the issue of “capital”, as the distribution of wealth and as the structuring of space (the capital city).

VI. A physics of power : producing a social milieu

  • 53 Ibidem, p. 70-71.
  • 54 Ibidem, p. 49.
  • 55 Ibidem.

36Sovereignty creates relations of obedience, and thus functions through the coupling of the sovereign and the subjects. Security, instead, works on the natural part of the phenomena it manages53. To regulate a population, governmental techniques need to intervene only at the relevant scale, in accordance with nature, which is the reality of population itself. This leads me to the observation that circulations work as techniques of government through the normalisation of the natural reality of the phenomena they regulate. The norm, as it appears in security apparatuses, is not absolute like in disciplinary techniques : it is instead always relative. Indeed, acting within the order of politics is acting within the order of nature. Freedom is, in this sense, strictly linked to security apparatuses. It is understood by Foucault as the freedom of movement, as processes of circulation : “I think it is this freedom of circulation, in the broad sense of the term, it is in terms of this option of circulation, that we should understand the word freedom, and understand it as one of the facets, aspects, or dimensions of the deployment of apparatuses of security54”. Foucault goes on to stress once again the natural element of these techniques of power : “A physics of power, or a power thought of as physical action in the element of nature, and a power thought of as regulation that can only be carried out through and by reliance on the freedom of each, is, I think, something absolutely fundamental55”.

  • 56 Ibidem, p. 20.
  • 57 Ibidem.

37Sovereignty deals with the space as a territory, discipline “structures a space and addresses the essential problem of a hierarchical and functional distribution of elements (...)56”. Security, instead, deals with space as a milieu, that is “what is needed to account for action at a distance of one body on another. It is therefore the medium of an action and the element in which it circulates. It is therefore the problem of circulation and causality that is at stake in this notion of milieu57”. Territory, in the relational sense, connects to its qualities and to frontiers, as well as to distribution, to circulations and to calculations. Territory consists of the assemblage of these relations, which form the milieu that enables governmental techniques to connect to the naturalness of population. Therefore, it has to be understood as the political and spatial expression of the category of milieu. As a consequence, circulations are deeply embedded in the materiality that constitutes power relations within the framework of governmentality. It is precisely the natural, physical and material dimension of circulations that makes them deeply political.

38To what extent can we rethink social citizenship under this paradigm of natural reality ? Once I re-contextualize Foucault’s category of circulation within the notions of population and security, it becomes clear that territory is closely connected to nature and environment. Nature, however, is not to be thought of as free from all governmental intervention, as it would be in classical liberalism. Circulations and their management are not the free expression of economic behaviours – as in Smith and Ricardo's idea of the market. Rather they entail a strong intervention by both law and politics, and in so doing they produce state effects, such as a redefined categories of territory and citizenship as political subjectivity.

VII. Foucauldian approaches to European integration

  • 58 D. bigo D and E. guild, Controlling frontiers: free movement into and within Europe, Aldershot and (...)
  • 59 T. aalberts and B. golder, “On the Uses of Foucault for International Law”, Leiden Journal of Inter (...)

39Despite the extensive use of Foucauldian insights and approaches, EU free movement law has rarely been analysed using Foucault’s analyses on governing through the management of circulations. The relevant exception is the work by Didier Bigo and Elsbeth Guild58. I propose to build here on Bigo and Guild’s general framework : using Foucault’s approach to political power and government, they place the question of EU free movement law and policies within a dynamic understanding of borders as shaping social and political space. The main differences between my approach and the one taken by Bigo and Guild are twofold ; the focus on technicalities of law and law as a political technology on the one hand and the engagement with Foucault’s notion of territory as milieu on the other. Foucault’s approach and methods can also be fruitfully applied to the field of contemporary international law, as demonstrated by Aalberts and Golder59.

  • 60 J. W. crampton and S. elden (ed.), Space, Knowledge and Power: Foucault and Geography, Aldershot, B (...)
  • 61 Ibidem, p. 9.

40Foucault’s engagement with space, and not only with territory, is the object of Elden and Crampton’s work on Foucault and geography60. The issue of freedom is one among various theoretical and political concerns of the book, whereas circulations are not explicitly addressed, and neither is EU law. The editors, in their introduction, recall that for Foucault the practice of freedom is inseparable from the questions of social relations and of spatial distributions. Foucault’s concern with freedom is, they continue, not one of defeatism as it is sometimes argued : “Freedom is a practice or a process that has to be constantly undertaken”61. This is an important claim for this essay as well. Reading EU law workings on free movement of services and workers through the Foucauldian lens, as I do here with the Laval case, does not mean describing EU law as a form of “panopticon” where everyone is controlled through free movement law. On the contrary, it entails understanding how legal and political techniques shape the space of social relations in specific practices of freedom – in some instances resulting in control of movement and in others in the lack thereof.

  • 62 W. walters and J.H. haahr, Governing Europe: discourse, governmentality and European integration, N (...)
  • 63 Ibidem.
  • 64 Ibidem, p. 12.
  • 65 Ibidem, p. 13.
  • 66 Ibidem, p. 15.

41Beyond the specific question of the technicalities of EU free movement law, the Foucauldian insights on circulation have been used to discuss European policies on free movement and mobility. Walters and Haahr’s work on Governing Europe calls precisely for “much greater connection between governmentality studies [as developed by Foucault’s later work] and research on European integration62”. They also make it clear that Foucault’s approach is not the only way to talk about Europe but one approach that is useful alongside others that in general contribute to “denaturalization of the idea of Europe, and the task of fashioning a more reflexive and critical tradition within EU studies63”. Within this general approach, Walters and Haahr insist on two points which are especially relevant for the present article : the relational character of power and focus on technologies of power as specific to the governmentality approach to EU integration. Following Foucault, they define government as “the conduct of conduct”, referring to how different forms of power “shape, guide or affect the conduct of some person or persons64”. Stressing the relationality of power means also moving away “from the notion of a singular or homogeneous European citizenship65” : as in pastoral power, forms of government tackle specific persons or groups of persons individually rather than taken altogether. This leaves room for uneven forms of mobility within EU free movement legal technologies and across the EU territory defined as a social milieu. Borders are not open or closed for everyone in the same manner. Rather circulation of people, workers and services is highly uneven and differential. Such an approach raises the question of how the EU is governed rather than why : “There is no generic European government of European integration. There are only particular regimes of thought and practice within which certain ways of governing Europe become possible66”.

  • 67 Ibidem, p. 16.
  • 68 Ibidem, p. 45.
  • 69 Ibidem, p. 49.
  • 70 Ibidem, p. 50.
  • 71 Ibidem, p. 61.
  • 72 Ibidem.

42Focussing on how technologies of power, such as EU free movement law, shape the milieu and the conduct of persons does not equate to a rejection of political agency, as also Walters and Haahr underline : “It is not a question of rejecting the fact of agency so much as specifying the historical and technical conditions which make it possible67”. In their analysis of the technologies of the common market within the specific case of the Rome Treaty, Walters and Haahr analyse freedom as “a tool of government”. They argue, “freedom is not articulated as a universal or abstract right. On the contrary, it is contextualised and tied to various specific activities and practices. Freedom is ‘freedom of movement’ for persons, services and capital68”. Workers’ freedom of movement is thus related to the capacity of governing and understanding the regional space of Europe as a governable entity. Walters and Haahr read the use of freed movement of workers in particular, and of economic services and goods in general, as one aspect of “an elaborate institutional framework” that “is seen to require constant governmental attention69”. This framework, they argue, is the one of “ordoliberalism”, a specific variation of liberalism according to which “political and legal intervention is seen not as a second order compared with the market, but constitutive of it70”. The main problem is not whether free movement disrupts barriers and territorial borders or not, the main question is what are the effects of the EU laws, policies and discourses as a “productive machine” and as a “legal complex71”. From a Foucauldian perspective, “power is operating in a positive sense - even in the context of ‘negative’ integration72”.

VIII. The “becoming territorial” of the EU

43Reading the principles of free movement of services, goods, capital and people through Foucault’s concept of circulation, I analyse them as central techniques of EU governmentality and of a rearticulation of social citizenship. As a consequence, free movement law is the device through which a milieu can be produced. In the EU, the government of circulations takes up the key role of producing a milieu, understood as the environment and the scale that allow power relations to intervene in the natural side of the object/subject of politics, the human body and human masses. First, circulations enable the production of political subjects within the governmental framework that EU law, as mobilized in the specific Laval case, makes possible. Second, circulations are closely related to the transformation of the relationship between territory and population. This indicates the passage from a static notion of sovereignty to the model of governing mobility. Circulations have therefore a deeply spatial dimension.

44Thus, the horizontal direct effect of art. 49 EC on the free movement of services intervenes in consolidating and producing a milieu, that is an environment where temporary mobility of workers produces at the same time a space for their own circulation and recomposition of the relation between territory and law. The Laval dispute can be read as an illustration of the intensification of the struggles over the emergence of differentiated forms of government and of scales of political and economic action in Europe. Posted workers are governed through freedom and through the regulation of their activity, as a sovereign territory’s population would be. We need also to bear in mind the context in which the Laval dispute took place : in the seven years following enlargement, transitional measures apply to the free movement of workers moving from the new Member States to the ones of Western Europe. A stratified legal, spatial, economic and political milieu is thus produced by these different regulations concerning the circulation of citizens, of workers and of services at the continental level.

  • 73 A. favell and R. hansen, “Markets against politics: migration, EU enlargement and the idea of Europ (...)

45Explaining the pre-eminence of free movement only in terms of market-driven rationality is therefore a limited account of the political nature of circulation as a technique of government in the contemporary EU. Indeed, Favell and Hansen explain labour migratory flows with an exclusively economic rationale : “International economic integration (...) lies behind the ‘marketization’ of migration in Europe. (...) The emptiness of ‘EU citizenship’ - which is little more than a fancy PR packaging of minimal cross-national economic rights for workers in the EU - signals this concern73”. While I agree with the authors that international economic integration has been a driving force in the fostering of circulations of workers and of services in the EU, I also contest their claim that the state has withdrawn from their management. By contrast, I have argued that it is precisely state and quasi-state technologies of government as well as legal operations that are producing the different categories of mobile subjects. As a consequence citizenship has not been downgraded but reassembled. Also, citizenship laws operating together with free movement legislation are the opposite of empty : it is, in connection with circulations, one of the legal and political techniques through which mobile and differentiated citizen-subjects are produced.

  • 74 N. brenner and S. elden, “Henri Lefebvre on State, Space, Territory”, International Political Socio (...)

46Circulation, therefore, does not concern only those individuals who are mobile within the EU internal market, but it transforms the core mechanisms through which the categories of citizenship, sovereignty and territory are understood and experienced. Herein lies the importance of the Laval judgment, and of the categories used by the ECJ in it : they provide us with a vocabulary of government that has circulation as its core element. The importance of circulations lies in their capacity to produce a milieu where the naturalness of the population can be governed. In this sense, the production of territory, of a spatial milieu, enables us to perceive the materiality of the population’s activities and regulate them. Here, I claim that state territory and political subjectivity are co-produced and, at the same time, their production is neutralized to “mask their own transformative impacts upon social life74”. Territory, in this sense, is different from the one that Foucault attributes to Machiavelli since it needs to be itself relational and mobile in order to adapt to the mobile reality of human masses. Circulations are not only embedded in a territorial milieu, but that they co-produce it.

  • 75 A. zimmermann and A. favell, “Governmentality, political field or public sphere? Theoretical altern (...)

47The analysis I present here, both of Foucault’s concepts and of concrete processes of circulation taking place in the EU, as exemplified by the Laval case, contrasts with interpretations of governmentality as dealing with deterritorialized flows of people and capitals : “The decoupling of government and power from the state is one of the attributes that makes the concept of governmentality especially fruitful to the analysis of deterritorialized politics beyond the nation-state such as the EU75”. Territory, in the relational sense, is instead the medium through which circulation can happen. Through the analysis of the Laval dispute, I demonstrate that the classical, national meaning of territory – as a closed space where national law, citizenship and labour regulation take place – is challenged by the ECJ’s interpretation as well as by the transnationalisation of labour. At the same time, the legal framework of the Posted Workers Directive and of free movement of services produces a differentiated territory that incorporates the geographical and the legal entanglements of national, transnational and European movements and regulations. Walters and Haahr argue that :

  • 76 W. walters and J.H. haahr, Governing Europe: discourse, governmentality and European integration, N (...)

48“The EU is becoming territorial. (...) Foucault helps us think the historicity of security. One way he does this is to dispense with the idea that security, territory and population have fixed or immutable relationships. Instead, he insists that their relationship has varied over time76.”

  • 77 J. O. bærenholdt, “Governmobility: The Powers of Mobility”, Mobilities, 8,1, 2013, pp. 20–34, p. 25

49Therefore, the move from a territorial and sovereign state to a state that fosters and manages circulations does not mean the disappearance of territory, defined as the spatial and relational environment (or milieu) through which circulations happen and in which a complex of men and things as object of government acquires its reality. As such, “(...) power is no more a question of sovereignty and discipline but of how security redesigns a milieu, working on material grounds (...)77”. The production of territory as milieu is therefore a core element of governing through mobility. The reading I present of EU governmentality allows us to bridge the gap between understandings of territory as an unquestioned physical substratum and more legal readings of this category. EU law is a governmental technique producing spatial categories and fostering changes in the rhythms of governance.

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Notes

1 cjue, Grand Chamber, December 18, 2007, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet and Others, Case C-341/05; Opinion of Advocate General mengozzi, May 23, 2007, Case C-341/05. Unless otherwise specified, references to the Laval case are to the text in its integrality (both the Opinion of the Advocate General and the Judgment).

2 S. moisio and J. luukkonen (2015), “European spatial planning as governmentality: an inquiry into rationalities, techniques, and manifestations”, Environment and Planning C: Government and Policy, 2015, 33,4, pp. 828-845.

3 M. foucault, Security, territory, population: lectures at the Collège de France, 1977-78, ed. M. senellart. Basingstoke, Palgrave Macmillan, 2007.

4 T.H marshall, Sociology at the Crossroads, London, Heneimann, 1963, p. 73.

5 M. powell, « The Hidden History of Social Citizenship », Citizenship Studies, 6:3, 2010, pp. 229-244.

6 Ibid., p. 238.

7 Ibid.

8 M. foucault, Security, territory, population: lectures at the Collège de France, 1977-78, ed. M. senellart. Basingstoke, Palgrave Macmillan, 2007.

9 T. lemke, “The birth of bio-politics: Michel Foucault’s lecture at the Collège de France on neo-liberal governmentality”, Economy and Society 30, 2, 2001, pp. 190–207.

10 S. elden, “How Should We Do the History of Territory?”, Territory, Politics, Governance 1,1, 2013, pp. 5–20, p. 9.

11 Ivi, p. 10.

12 M. foucault, Security, territory, population : lectures at the Collège de France, 1977-78, ed. M. senellart. Basingstoke, Palgrave Macmillan, 2007, p. 49.

13 D. zamora and M.C. behrent (ed.), Foucault and Neoliberalism, London, Polity, 2015.

14 M. dean, “Foucault must not be defended”, History and Theory, 54, 2015, pp. 389-403.

15 Commission of the European Union, Directive 96/71/EC of the European Parliament and the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, Luxembourg, Official Journal of the European Communities, L18/1.

16 Commission of the European Union, SEC(2004)21, Proposal for a Directive of the European Parliament and of the Council on services in the internal market, Luxembourg, Official Journal of the European Union, L376/36.

17 T. pullano, « La citoyenneté européenne : les mesures transitoires concernant la libre circulation des travailleurs comme productrices de différences », Droit et Société, p. 86, 1, 55–75, 2014.

18 G. burchell, C. gordon, P. miller, The Foucault Effect. Chicago, University of Chicago Press, 1991.

19 S. mezzadra and B. neilson, Border as Method, or, the Multiplication of Labor, Durham, Duke University Press, 2013, p. 2-3.

20 T. pullano, La citoyenneté européenne : un espace quasi étatique, Paris, Presses de Sciences Po, 2014.

21 N. N. shuibhne, “The Social Market Economy and Restriction of Free Movement Rights: plus c’est la même chose?”, JCMS, 2015, 57,1, 111-126.

22 Y. thomas, M.A. hermitte M A, P. napoli, Les opérations du droit, Paris, Seuil, EHESS, 2011.

23 A. thomas, “Degrees of Inclusion: Free Movement of Labour and the Unionization of Migrant Workers in the European Union”, Journal of Common Market Studies, 54, 2, 2015, pp. 408–425. The relationship between EU citizenship, free movement law and the market principle versus social rights and social conflicts is at the center of the process of redefinition of social citizenship at the EU level. On this debate, please see N. N. shuibhne, “The Social Market Economy and Restriction of Free Movement Rights : plus c’est la même chose ?”, JCMS, 2015, 57,1, 111-126 ; Frans pennings, Martin seeleb-kaiser (dir.), EU Citizenship and Social Rights. Entitlements and Impediments to Accessing Welfare, Edward Elgar, 2018 ; Roxana barbulescu, Adrian favell, “Commentary : A Citizenship without Social Rights ? EU Freedom of Movement and Changing Access to Welfare Rights”, International Migration, 2019, 58,1, 151-165 ; Cecilia bruzelius, Constantin reinprecht, Martin seeleib-kaiser, “Stratified Social Rights limiting EU Citizenship”, JCMS, 2017, 55,6, 1239-1253.

24 W. walters and J.H. haahr, Governing Europe: discourse, governmentality and European integration, New York, Routledge, 2005.

25 S. reynolds (2016) Explaining the constitutional drivers behind a perceived judicial preference for free movement over fundamental rights. Common Market Law Review, 53,3, 2016, 643–677.

26 See Opinion of Advocate General mengozzi (supra) in the Laval case, para. 260.

27 J. malmberg and T. sigeman, “Industrial actions and EU economic freedoms: The autonomous collective bargaining model curtailed by the European Court of Justice”, Common Market Law Review, 45,4, 2008, pp. 1115–1146.

28 european union, Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Luxembourg: Official Journal of the European Union, C202/59, 2016.

29 U. belavusau, “The Case of Laval in the Context of the Post-Enlargement EC Law Development”, German Law Journal 9,12, 2008, pp. 1279–1308; J. dølvik and J. visser, “Free movement, equal treatment and workers' rights: can the European Union solve its trilemma of fundamental principles?”, Industrial Relations Journal, 40,6, 2009, pp. 491–509; M. höpner and A. schäfer, “A New Phase of European Integration: Organised Capitalisms in Post-Ricardian Europe”, West European Politics, 33,2, 2010, pp. 344–368; J. malmberg and T. sigeman, “Industrial actions and EU economic freedoms: The autonomous collective bargaining model curtailed by the European Court of Justice”, Common Market Law Review, 45,4, 2008, pp. 1115–1146; G. meardi, “Union Immobility? Trade Unions and the Freedoms of Movement in the Enlarged EU”, British Journal of Industrial Relations, 50,1, 2010, pp. 99–120 ; N. reich, “Free Movement v. Social Rights in an Enlarged Union : The Laval and Viking Cases before the ECJ”, German Law Journal, 9,2, 2008, pp. 125–161.

30 commission of the european union, Directive 96/71/EC of the European Parliament and the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services. Luxembourg : Official Journal of the European Communities, L18/1, 1996.

31 Ibid., Alinea 13.

32 Commission of the European Union, SEC(2004)21, Proposal for a Directive of the European Parliament and of the Council on services in the internal market, Luxembourg, Official Journal of the European Union, L376/36.

33 Ibid.

34 M. höpner and A. schäfer, “A New Phase of European Integration: Organised Capitalisms in Post-Ricardian Europe”, West European Politics, 33,2, 2010, pp. 344–368, p. 354.

35 Ibid.

36 A.C.L. davies, “One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ”, Industrial Law Journal, 37, 2, 2008, pp. 126–148.

37 J. dølvik and J. visser, “Free movement, equal treatment and workers’ rights: can the European Union solve its trilemma of fundamental principles?”, Industrial Relations Journal, 40,6, 2009, pp. 491–509.

38 C. woolfson, “Labour Mobility in Construction: European Implications of the Laval un Partneri Dispute with Swedish Labour”, European Journal of Industrial Relations, 12,1, 2006, pp. 49–68; C. woolfson, C. thörnqvist, J. sommers, “The Swedish model and the future of labour standards after Laval”, Industrial Relations Journal 41,4, 2010, pp. 333–350; S. garben, “Balancing social and economic fundamental rights in the EU legal order”, European Labour Law Journal, 11, 4, 2020, pp. 364-390.

39 B. golder, Re-reading Foucault, London, Routledge, 2013; B. golder, “Foucault’s Critical (Yet Ambivalent) Affirmation: Three Figures of Rights” Social & Legal Studies, 20,3, 2011, pp. 283–312 ; B. golder and P. fitzpatrick, Foucault’s law, London, Routledge, 2009 ; B. golder and P. fitzpatrick (eds.), Foucault and Law, Aldershot, Burlington, Ashgate, 2010 ; A. hunt and G. wickham, Foucault and Law, London, Pluto Press, 1994 ; G. wickham, “Foucault, law, and power : A reassessment”, Journal of Law and Society, 33,4, 2006, pp. 596–614.

40 M. foucault, Security, territory, population: lectures at the Collège de France, 1977-78, ed. M. senellart. Basingstoke, Palgrave Macmillan, 2007, p. 99.

41 Ibidem.

42 Ibidem.

43 N. rose and M. valverde, “Governed by law?”, Social & Legal Studies, 7,4, 1998, pp. 541–551, p. 542.

44 K. walby, “Contributions to a Post-Sovereigntist Understanding of Law: Foucault, Law as Governance, and Legal Pluralism”, Social & Legal Studies, 16,4, 2007, pp. 551–571; Y. thomas, M.A. hermitte M A, P. napoli, Les opérations du droit, Paris, Seuil, EHESS, 2011, p. 120; S. elden, “How Should We Do the History of Territory?”, Territory, Politics, Governance 1,1, 2013, pp. 5–20, p. 7.

45 M. valverde, “Jurisdiction and Scale: Legal Technicalities as Resources for Theory”, Social & Legal Studies, 18,2, 2009, pp. 139–157.

46 B. de sousa santos, “Law: a map of misreading. Toward a postmodern conception of law”, Journal of Law and Society,14,3, 1987, pp. 279–302.

47 M. valverde, “Jurisdiction and Scale: Legal Technicalities as Resources for Theory”, Social & Legal Studies, 18,2, 2009, pp. 139–157, p. 141.

48 Ibidem, p. 142.

49 M. foucault, Security, territory, population: lectures at the Collège de France, 1977-78, ed. M. senellart. Basingstoke, Palgrave Macmillan, 2007, p. 99.

50 Ibidem, p. 65.

51 Ibidem, p. 176.

52 Ibidem, p. 64.

53 Ibidem, p. 70-71.

54 Ibidem, p. 49.

55 Ibidem.

56 Ibidem, p. 20.

57 Ibidem.

58 D. bigo D and E. guild, Controlling frontiers: free movement into and within Europe, Aldershot and Burlington, Ashgate, 2005.

59 T. aalberts and B. golder, “On the Uses of Foucault for International Law”, Leiden Journal of International Law, 25,03, 2012, pp. 603–608.

60 J. W. crampton and S. elden (ed.), Space, Knowledge and Power: Foucault and Geography, Aldershot, Burlington, Ashgate, 2007.

61 Ibidem, p. 9.

62 W. walters and J.H. haahr, Governing Europe: discourse, governmentality and European integration, New York, Routledge, 2005, p. 3.

63 Ibidem.

64 Ibidem, p. 12.

65 Ibidem, p. 13.

66 Ibidem, p. 15.

67 Ibidem, p. 16.

68 Ibidem, p. 45.

69 Ibidem, p. 49.

70 Ibidem, p. 50.

71 Ibidem, p. 61.

72 Ibidem.

73 A. favell and R. hansen, “Markets against politics: migration, EU enlargement and the idea of Europe”, Journal of Ethnic and Migration Studies, 28,4, 200, pp. 581–601, p. 598.

74 N. brenner and S. elden, “Henri Lefebvre on State, Space, Territory”, International Political Sociology, 3,4, 2009, pp. 353–377, p. 371.

75 A. zimmermann and A. favell, “Governmentality, political field or public sphere? Theoretical alternatives in the political sociology of the EU”, European Journal of Social Theory, 14,4, 2011, pp. 489–515, p. 494.

76 W. walters and J.H. haahr, Governing Europe: discourse, governmentality and European integration, New York, Routledge, 2005, p. 107.

77 J. O. bærenholdt, “Governmobility: The Powers of Mobility”, Mobilities, 8,1, 2013, pp. 20–34, p. 25.

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Teresa Pullano, « Free movement, Social Citizenship, and the Production of the EU’s legal territory as a “Social Milieu.” Reading the Laval case through Foucault »La Revue des droits de l’homme [En ligne], 23 | 2023, mis en ligne le 06 février 2023, consulté le 23 juin 2024. URL : http://journals.openedition.org/revdh/16943 ; DOI : https://doi.org/10.4000/revdh.16943

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Teresa Pullano

Teresa Pullano is Researcher, CNR-IRPPS (Rome) ; Research Fellow, LSE European Institute, LSE (London).

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