The EU – just or unjust?
Posted on: 30 April 2015
By: nicold
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Is the European Union a source of justice, or a source of injustice? The crisis in the Mediterranean has given new urgency to this question. It’s a question which is considered in a new book Europe’s Justice Deficit? published this month. The book is a collection of essays by EU scholars, myself included, which dwell upon the just or unjust nature of the EU (Europe’s Justice Deficit? eds. Gráinne de Búrca, Andrew Williams and Dimitry Kochenov, Oxford: Hart, 2015).
Academics in the fields of EU politics and EU law are long accustomed to considering the EU’s “democratic deficit”: but this book is perhaps the first in which EU law scholars have collectively engaged with whether there is a “justice deficit”. It may seem surprising that academics have not convened in the past to consider this matter. The omission owes much to the almost unanimously non-critical stance which prevailed in EU law (at the time, EC law) since the birth of the European Communities in the 1950s. EC lawyers were delighted that the Court of Justice of the European Communities was fashioning a federal-type legal constitution: the enforcement of EC law seemed so much stronger than “weak” international law. EC law academics were cock-a-hoop about the creation of the doctrines of supremacy and direct effect. They took the substantive content of the EC Treaty to be incontestably good, right and just: the European project was above politics. Scholars’ quasi-religious faith in the EC Treaty meant that EC law scholarship was, in the main, not about being critical. Instead it largely focused on analysing the true meaning of the latest holy writ being handed down by the Court of Justice.
In the early years, this role for the academic as defender of the EC faith might have seemed just about comprehensible. Originally many people assumed that the EC was merely a technocratic fix. Detailed questions of trade and competition policy did not seem the stuff of partisan politics. No-one was going to mount the barricades over the finer details of customs duty law.
Slowly but surely, however, this illusion started to crumble. A strong consensus developed among the global political elite in the 1980s in favour of neoliberalism – the ideology which favours privatisation, competition, free trade, light-touch regulation of corporations, a reduced welfare state and a relaxed acceptance of growing social inequalities. As a result the power of the corporations started to grow. Already implicit in the EC Treaty, EU law’s commitment to neoliberalism was, over time, made increasingly explicit – being entrenched by treaty revision, legislation and jurisprudence.
In this regard the EU’s decision to establish a single currency, the Euro, covering both strong and weak economies, and the ensuing crisis, has led to intense argument over what’s just and what’s unjust, as reflected in the splendid posts on this blog by my colleague Dr Ioannis Glinavos. The seminal and protracted nature of the Eurozone crisis should help scholars to fully let go of the assumption that the EU treaties represent justice and instead politicise the debate on justice by recognising the multiplicity of views on the subject.
The recent tragic events in the Mediterranean Sea – part of a no less protracted saga – also raise forceful questions of EU justice. At its highest level of generality, is it compatible with justice for the EU to make such a strong distinction between EU nationals and non-EU nationals? Is it fair to make such a sharp differentiation based on accident of birth – and with its thunderously racist implication?
The Eurozone crisis and the disaster in the Mediterranean necessitate the fiercest possible controversy in the academy, as elsewhere, over what’s just and what’s unjust in the European Union and its law. It is to be hoped that the publication of Europe’s Justice Deficit? represents a significant shift in the focus of EU law scholarship in this regard.
Professor Danny Nicol is Professor of Public Law at the University of Westminster. He is the author of EC Membership and the Judicialization of British Politics (2001), and The Constitutional Protection of Capitalism (2010). He has published widely on public law, EU law and the UK Human Rights Act.