Justice as Europe's Signifier

Abstract

Drawing on the fact that justice is never explained in European legal discourse, but is used in conjunction with other principles and institutional decisions, this contribution argues that justice is used as a rhetorical tool to provide legitimacy to such principles and decisions. An analogous process is at work in scholarly critique of institutional justice, where the way justice is understood is made subservient to scholarly preferences for other principles. This process is most notably at work in making justice subservient to particular ways of understanding and advocating the importance of democracy and fair process. Assuming that it is desirable for justice to have a voice of its own, the chapter argues that it is necessary to identify and work against the ‘inverse monism’ that justice suffers; where institutional speech-acts shape the discourse of social organisation and individual contestation.

The inevitability of defining justice according to institutional preferences tempts the conclusion that justice cannot possibly have a voice of its own within the institutional constrains of the European legal order. This may be true if the aim is to give space to all the meanings that justice can possibly have, but the chapter recognises the necessity for institutional violence upon infinite meanings to maintain social order. What is advocated instead is working towards the construction of a legal space that facilitates the assessment and contestation of institutional violence. Such a legal space may require institutional change as well as interpretive ingenuity. The interpretive techniques found in some of the case law on citizenship demonstrate that it is possible for a citizen to seek justice understood in ways that are different from maintaining the stability of the common market. However, other cases with respect to citizenship and other areas of law serve to foreclose this endeavour.

Keywords: ethics, justice, comparative law, hermeneutics, legal epistemology