Justice, Injustice and the Rule of Law in the EU
G de Búrca, D Kochenov and A Williams (eds), Europe’s Justice Deficit? Beyond Good Governance (Hart Publishing Oxford 2014)
16 Pages Posted: 23 Jun 2014 Last revised: 7 May 2015
Date Written: November 1, 2013
Justice is as much an issue for the EU as it is for any state or social institution. According to 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 do 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. In some recent actions dealing with particularly pressing issues, the EU has not added value but caused injustice. This chapter will give some particular examples. Unfortunately, however, the resolution of these injustices is not readily apparent. In particular it may be that some of these states of affairs are specifically attributable to the sui generis nature of the EU - to its complex actuality as neither purely sovereign state, creature of international law, nor federal or confederal body. The inchoate status of the EU presents singular challenges for justice.
The earlier sections of this chapter are mainly descriptive in nature, and set out some examples of injustices caused by EU actions. Later in the chapter, however, I consider the concept of justice in greater detail. In that context, I argue that some limited solution to the problem of justice may be found in the specific relation of justice to law, in a concept I name Critical Legal Justice.
However, I also argue that justice should not be conceived only as legal justice. In the concluding parts of the chapter I argue that, while, on broader reflection the concept of justice may appear to be so elusive as to be an ideal or utopian, that it is the diagnosis of injustice that is itself crucial. Indeed, justice is more likely to move people in its absence, in its antithesis of injustice, rather than as an academic, abstract exercise that ultimately fails to convince. I analyse the notion of injustice in some detail, drawing on philosophical literature, more specifically the works of Adam Smith, David Hume and Amartya Sen, arguing that it is injustice that motivates and propels action, and the highlighting of injustice does its own work. Such an approach is of relevance to the EU and its present predicaments.
Keywords: EU law, jurisprudence, transnational law, political theory, theories of justice
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