The Concepts of Non-Domination and Justification in EU Security-Related Context
Book chapter in E Herlin-Karnell & M Klatt (eds.) Constitutionalism Justified (Oxford University Press 2018), Forthcoming
Posted: 19 Jun 2018
Date Written: September 1, 2017
This chapter explores the implications of a non-domination oriented view for understanding European Union (EU) security regulation. I will ask how the non-domination template fits the constitutional legal model, and what it adds for the understanding of the establishment of an “Area of Freedom, Security and Justice” (AFSJ) in the specific case of the EU. The concept of non-domination is commonly seen as one of the most central concepts in republican theory. Therefore, I will tentatively look at the relationship between coercion, which is the common term in legal vocabulary for describing force, and the concept of domination in political theory as such. In addition, I will discuss the implications of non-arbitrariness and the right to justification in a new security-related context. Specifically, the chapter links the question of security regulation to the longstanding debate in political theory on the connection between freedom and non-domination and to the constitutional debate on the formation of security regulation in Europe. Examples will be drawn from EU “Area of Freedom, Security and Justice” law and policy as an expression of how practice matters, and arguably dependent on the use of proportionality, and reflected in the constitutional theory debate on the right to justification.
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