Current Legal Problems (2012)
30 Pages Posted: 22 Jun 2014
Date Written: February 20, 2012
This article will focus on the issue of justice in the EU. Latterly, the notion of justice has tended to be overshadowed by other concepts. For example, human rights, democracy or accountability tend to be relied on far more frequently than justice as conceptual tools for diagnosing and treating EU problems. Yet perhaps we should remember the plea for the priority of justice as articulated by John Rawls: ‘Justice is the first virtue of social institutions, as truth is to thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.’ While I will not argue for the application of Rawls’ actual theory of justice to EU law, I do argue that justice, or perhaps rather injustice, raises especially salient issues for the contemporary EU. Analyzing the EU’s actions in terms of justice highlights their impact on its peoples, and accentuates its imbalances of power. In attempting to deal with some particularly pressing 21st century issues, the EU has not added value but caused injustice. This paper will give some particular examples. However, the solutions to these instances of injustice are not readily apparent, nor may answers easily be found in other concepts such as human rights, democracy or accountability. I believe that some of these concerns are attributable in particular to the sui generis nature of the EU, in its existence neither as purely state, international law, nor federal body. In its form as ‘unidentified political object’ the EU presents singular challenges for justice.
In the earlier, more descriptive part of this article, I do not attempt to define the notion of justice, nor argue that it should be understood in any particular sense – for example, as a thick or thin concept, or in a substantive or procedural sense. Rather, I proceed on the basis that it is a value whose importance is immediately recognizable in some sort of Dworkinian ‘pre-interpretive’ sense, and should surely be acknowledged by an EU that wishes to proclaim its values. In the later sections of the article, however, I turn to the concept of justice in more detail. My argument is that a partial solution to the problem of justice may be found in the particular relation of justice to law, in a concept I name Critical Legal Justice, bearing in mind the crucial role that legal integration has played for the development of the EU. However, justice is not confined to legal justice. Here, my suggestion is that, while justice in a broader sense may be so elusive as to be an ideal or utopian, that it is the diagnosis of injustice which is itself crucial, as justice is more likely to move people in its absence, rather than as an academic or rhetorical exercise that fails to convince. It is injustice that motivates and propels action, and the highlighting of injustice does its own work.
Keywords: EU law, legal theory, law and the image, transnational law, legal pluralism, political philosophy
Suggested Citation: Suggested Citation
Douglas-Scott, Sionaidh, Justice and Pluralism in the EU (February 20, 2012). Current Legal Problems (2012); Oxford Legal Studies Research Paper No. 78/2014. Available at SSRN: https://ssrn.com/abstract=2457253