Brink, Martijn van den

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Martijn van den Brink Fr 19 Jun2015Fr 19 Jun2015The EU’s limited justice capacitiesverfassungsblog.de/the-eus-limited-justice-capacities-2/The starting premise behind Europe’s Justice Deficit? is that we have to associate justicenot only with the state, but also with sub- and supra-state entities. Considering the depthand breadth of European integration, the EU cannot escape our scrutiny; the EU is, as theeditors remark, ‘clearly at the very least a potential agent of (in)justice’. One cannot butwholeheartedly agree with this starting assumption, but we should also acknowledgethat it leaves a very important question unanswered: does the EU possess the samecapacities for delivering (in)justices as other entities, in particular the state? Can wesimply apply our justice vocabulary to the EU without even the slightest modicum oftranslation that takes into account the context within which the EU is situated? While it isnot denied that the EU has the ability to deliver justice, it is suggested that there arelimits to the EU’s justice capacities.Some might find these questions surprising, for the EU constitutional arrangementcontains many of the elements that we commonly associate with justice: the Treaty ofLisbon has given us a binding Charter of Fundamental Rights and contains severalreferences to democracy and the values common to the Member States. Theconstitutional practice might be unsatisfactory thus far, but the constitutional frameworkcertainly isn’t; it provides constitutional lawyers with the equipment to scrutinise thestatus quo and to turn the EU into a more just community, as Thym in his blog postseems to suggest.Such a constitutional legal perspective is unsatisfactory for at least two reasons. What itignores, first of all, is the constraints the EU constitutional arrangement places uponthose provisions. Take the EU’s duty to respect the national and constitutional identitiesof the Member States, enshrined in Article 4(2) TEU. Cases like Runevič-Vardyndemonstrate very well how such constraints may force the Court to accept practices thatmany of us would consider unjust (which does not mean necessarily that the Court tookthe wrong decision). More importantly, the constitutional legal perspective does not askthe questions that are logically prior to ones about the adjudication of legal provisions:namely, what does justice require and what are the conditions for justice? The manyways in which these questions can be answered show justice’s contested nature, which isonce more proven by the different contributions to Europe’s Justice Deficit?.Some have suggested that liberal-democratic principles of justice can only be fullyimplemented within the context of the nation-state; only nation-states with theircommon history and sense of common faith have been able to create the communal tiesand mutual trust that are necessary for the sense of justice we are so desperatelyseeking for within the EU; it is those ties that have supported and sustained processes ofdeliberate democracy as well as systems of social sharing.[1]1/5Williams, in his contribution to the book, has tried to counter some of those arguments.The EU, he claims, offers ‘a form of … community’ and has unequivocally demonstratedto possess some of the capacities for redistribution of resources. If we then ‘believe thatour moral obligations to others should not be constrained by historically constructedstate borders’, the EU is a valid entity for pursuing justice.[2] Those arguments, with allrespect, do not prove that those who link substantive justice to the state are fullymistaken. Even the most ardent liberal nationalist will not deny that we have moralobligations to those outside our state borders.[3] Neither are they likely to disagree withthe definition of the EU as a form of community or the finding that wealth redistributionhas taken place within the EU. What matters is whether the sense of community withinthe EU is strong enough to sustain the kind of social redistribution the welfare state hasprovided (which evidently is broader in scope than the EU’s current schemes ofredistribution). The question is not if we have moral obligations to non-nationals, butwhat they are precisely in a world in which identity, community, and solidarity are still toa large extent divided along national lines. These are the issues one must engage with inorder to demonstrate the flaws in the arguments of those maintaining that justice islargely limited to the state.To be sure, none of this suggests that justice is irrelevant in the EU’s context. It isessential to discuss to what extent the EU produces outcomes that we conceive as just. Infact, I believe that we should ask the same questions with respect to communities withweaker communal ties than the EU. Nor does the above suggest that the EU cannot orshould not aspire to contribute to justice. The extent to which the EU has contributed togender equality is a perfect example of this. All that is suggested is that the fact that theEU has contributed to justice, has been able to redistribute resources, and has fostered afeeling of community among (some) EU citizens is not sufficient to dismiss the claimsmade by those who believe that the most substantive form of justice ultimately can beprovide by the state alone.A second counter-argument would submit that those who submit that the state is theideal site for justice are ‘shrinking the Scope of Justice to “people like us”, “our state”, “ournation” and the like’, thereby ‘interpreting injustices away’.[4] Even though I would notwant to dismiss the possibility that focussing on those with whom we feel a sense ofcommonality may lead us to ignore injustices elsewhere, I am not sure that those wholink justice to the state are blind to injustices elsewhere. Our sense of compatriotism andfeelings of nationalism may very well be entirely irrational, but that is no reason todismiss those them as irrelevant.[5] To the contrary, it is pertinent to acknowledge theirrational and subjective nature of human beings (if all of this is irrational at all), for thevery simple reason that ignoring this may stretch the boundaries of solidarity beyondwhat many are willing to sustain. Those who claim that the most demanding forms ofjustice can only flourish within the state might be acutely aware of our world’s socialreality and incorporate that in their theories (sometimes perhaps excessively so) becausethey believe that this is the most likely means to achieving social justice.2/5If this is true it must have important implications for the justice debate. We should notassociate justice only with the state, but we must admit that the absence of Europe-widefeelings of community and the structural barriers that prevent such feelings from cominginto being foreclose the possibility that the EU can be the site of justice in the way stateshave been and still are. To put it bluntly, we must admit that the EU’s justice capacitiesare limited and that its capacity for creating injustices is at times greater than its capacityfor producing justice.The Eurozone crisis has, as Viehoff and Nicolaïdis aptly noted, exposed that ‘there arelimits to apprehending social justice between European peoples simply as enlightenedmutual advantage’.[6] The injustices created by EU imposed austerity measures havebeen discussed extensively within the book and on this blog and presumably do notneed further discussion. No one can seriously maintain, I hope, that we cannot talk aboutinjustice in this context because the Greek government has signed up to the austeritymeasures.[7] To what extent the situation in Greece was caused by its empty purse or bythe austerity measures – presumably it is a combination – does not change the feelingsof injustice experienced by large parts of the Greek population. Be this as it may, my real(and somewhat pessimistic) point is that these injustices seem difficult to repair. Thenationals of other Member States are not willing to make the self-sacrifices necessary toalleviate the hardship of the Greek population. That does not justify the current situationof course. That one first wants to take care of fellow nationals does not justify thedisregard for the basic rights of others.My point is a different one. If there is one lesson to be drawn from the Eurozone crisis, itis that we should not ignore the social reality within the EU. Legislative as well as judicialoverreach may create profound injustices in the long run. If the conditions for Europeanand transnational justice are not sufficiently developed to counterbalance injusticescreated through economic and monetary integration,[8] there is an even greater moralduty to prevent those injustices from happening in the first place. The EU must besimilarly careful, therefore, not to erode the elaborate systems of social sharing withinthe Member States through its competition and free movement rules. If only theMember States provide for the ties and trust that sustain elaborate welfare schemes,legislative but in particular judicial overreach may undermine rather than extend thebases of social justice within the EU.This brings me to Kochenov’s, de Búrca’s, and Williams’ third consideration concerningthe need to ‘align the considerations of justice with those of democracy and legitimacy’.To do so we should, as a start, acknowledge that the three are generally more unitedwithin the Member States than within the EU. Whenever Member States manage toensure outcomes that are just, these are generally legitimized by their processes ofdemocratic deliberation. The EU might very well enhance justice through its policies, butwhether they are also democratically legitimated is a more complex issue. Not only is theEU lacking the preconditions for autonomous democratic legitimacy, decisions taken bythe European legislator or Court are likely to constrain national processes of democraticlegitimation. In addition, considering that the welfare state is one of the central tenets3/5upon which the legitimacy of the Member States rest, the EU’s impact on the MemberStates’ capacity to promote the common welfare of society as a whole might furthererode the legitimacy of the policies of the EU. The connectedness between democracy,legitimacy, and justice within the Member States only further reinforces the argumentthat the EU should try to avoid legislative and judicial overreach.That the question of justice is important also for non-state actors like the EU isundisputable. We should be careful, however, not to confuse this with the question towhat extent state-based conceptions of justice can be applied to the EU. The EU does notpossess the justice capacities of the Member States, nor the autonomous processes ofdemocratic legitimation. This is in no way an Eurosceptic argument; it merely suggeststhat we can only aspire a more just EU if we are realistic about the EU’s limited justicecapacities.[1] See, for example: Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism,and Citizenship (Oxford University Press 2001) 222–225.[2] Andrew Williams, ‘The Problem(s) of Justice in the European Union’ in DimitryKochenov, Gráinne de Búrca, and Andrew Williams (eds), Europe’s Justice Deficit? (Hart2015).[3] See, for example: David Miller, On Nationality (Oxford Univ Press 1999).[4] Dimitry Kochenov, ‘The Just World’ in Dimitry Kochenov, Gráinne de Búrca, andAndrew Williams (eds), Europe’s Justice Deficit? (Hart 2015).[5] Which is Kochenov admits as well in his chapter.[6] Juri Viehoff and Kalypso Nicolaïdis, ‘Social Justice in the European Union: The Puzzlesof Solidarity, Reciprocity, and Choice’ in Dimitry Kochenov, Gráinne de Búrca, and AndrewWilliams (eds), Europe’s Justice Deficit? (Hart 2015).[7] This is precisely what seems to be suggested by Ruffert though in his contribution tothis debate.[8] For a very similar argument, see also Joerges’ blog post.4/5While you are here…If you enjoyed reading this post – would you consider supporting our work? Just clickhere. Thanks!All the best, Max SteinbeisSUGGESTED CITATION  van den Brink, Martijn: The EU’s limited justice capacities, VerfBlog,2015/6/19, https://verfassungsblog.de/the-eus-limited-justice-capacities-2/.5/5

The EU’s limited justice capacities

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The EU’s limited justice capacities

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