Book Review: Europe’s Justice Deficit?
Europe’s Justice Deficit? Edited by Dimitry Kochenov, Gráinne de Búrca, and Andrew Williams. Oxford, UK: Hart Publishing, 2015. Pp. 510. Price: £59.99 (Hardcover).
Reviewed by Daniel Listwa
Speaking in October 2014, László Andor, Commissioner for Employment, Social Affairs, and Inclusion of the European Commission, surveyed the damage of the 2008 financial crisis and the sovereign debt crisis that followed it in 2010. In addition to unemployment and increased poverty, Andor warned of a subtler, though no less nefarious, concern: the growing socio-economic inequality between the EU’s Member States. These developing “imbalances and inequalities,” he cautioned, threatened “the cohesion of the EU as a whole.” Faced with the potential failure of the European experiment, Andor suggested that hope could be found in the concept of greater solidarity, meaning a strengthened commitment by each Member State to the common concern of all the citizens of the EU.
Although the concept of solidarity, alongside the related notion of “social justice,” can be found in the EU’s founding texts—for example, in Article 3(2) of the Treaty on European Union (TEU)—it has received far less than its due amount of attention. The terms invoke substantive notions of duty and the collective movement toward a common ideal. But what such a substantive ideal is has been left largely undefined. Unlike in the United States, where constitutional discourse is dense with the normative themes of liberty and freedom, public reasoning in Europe lacks an analogous set of widely shared commitments, save perhaps the “market freedoms” spelled out as fundamental in the Treaty on the Functioning of the European Union (TFEU): the free movement of goods, workers, services, and capital. While the economic objectives of market integration have been well-articulated and feature prominently in public debate, the broader social goals of the European project are much less firmly anchored.
This is a problem. As we have seen play out over the last few years—and with much greater ferocity in the last couple—resting the justification of European integration on purely economic motives is far too thin to withstand the ravages of time. As soon as the economy stops working for everyone—or the perceptions of such a change occurs—people will demand an out. One need not search hard for evidence of such a phenomenon. No argument was more ubiquitous within the Brexit camp than the claim that Britain spent £350 million a week on EU membership with little in return. Casting EU membership as more akin to an unused gym membership than a bond of solidarity among people, the Brexiteers won the referendum in large part by convincing the populace that the EU just was not worth the trouble.
Although first published before the Brexit vote, one can understand countering that narrative as sitting at the heart of Europe’s Justice Deficit?, a collection of essays by leading academics and young scholars that offers a robust conversation about the legal and philosophical aspects of justice in Europe. As the editor-contributors Dimitry Kochenov, Gráinne de Búrca, and Andrew Williams, two lawyers and a philosopher, respectively, describe it, the intention of the volume is to rectify the gap in the public discourse by exploring the relationship between justice and law in the European Union. The collection makes significant headway towards that goal, bringing a sense of structure and cohesion to an important discussion and leaving the reader with a strong conception of the important questions that need to be asked and perhaps a few answers as well.
The collection is structured fluidly, building like an exchange between the contributors, who, while sometimes disagreeing, push forward two primary themes, which the editors concisely summarize: “first, normative, that it is appropriate to talk about justice in terms of the EU; and second, empirical, that justice in [the European] context has been, despite exceptions, inadequately theorized and examined academically and institutionally” (p. 1). Within that conversation are a number of familiar voices and ideas, such as Jürgen Neyer (p. 221) and Rainer Forst’s (p. 227) respective cross-referencing discussions of the justice as justification; but some contributions, such as the co-authored chapter by Juri Viehoff and Kalyso Nicolaїdis (p. 277), are fresher in their approaches and show significant engagement with the other chapters in the volume. The result is dynamic survey of important contemporary views, an opening volley in what the editors clearly hope will be a more robust, interdisciplinary debate.
While a relatively free-ranging collection, the voices of the three editors provide a strong thematic structure. After an introductory chapter jointly authored by Kochenov and Williams, chapters written by each of them, respectively, follow. These chapters set out a number bigger themes around which much of the argumentation that follows centers. In the final chapter, de Búrca ties these various lines together—not in a neat bow, but in the shape of a question mark—stressing the need for further debate to contextualize consideration of justice within the study of democracy and human rights in European law (p. 459).
As the title suggests, the central focus of the collection is a deficit of justice—a metaphor borrowed from the mature literature about the democratic deficit in Europe. We may all agree that that EU strives to be democratic, but is there a similar consensus that it ought to be just—and if so, what does justice look like? Williams’s chapter begins with a useful explanatory account of why it is that no robust consensus exists, despite the TEU’s assertion of “social justice” as a guiding value. In part this is because it was once believed that the central focus of the process of integration, the building of the internal market, would lead to prosperity for all, making choices between conflicting values relatively moot. In the name of that common market, national economic boundaries were removed and infrastructure was built. Looking at the allocations of funds in the EU budget, for some time it did appear that a process of redistribution was taking place and countries like Ireland seemed to benefit greatly from membership. The hidden problem of solidarity, however, became increasingly difficult to pave over with the language of the common market in the aftermath of the two recent recessions. As austerity became the guiding principle of European economic policy, the narrative of increasing fairness and equality within the EU rang with much less truth. As Ireland, Greece, Portugal, and Spain suffered mightily while recovery took hold elsewhere in Europe, albeit slowly, it could no longer be so easily claimed that membership in the EU brought with it the movement of wealth from the centers of prosperity to the periphery.
The new economic reality has given rise to a need to address directly the issue of redistributive justice in the context of the European Union. When it can no longer be assumed that whatever is being done now will promote the prosperity of every Member State, the question of what justice between the member states looks like must be asked. As Kochenov writes in his chapter, even a cursory survey of academic work reveals a neglect of the subject: “deviations from the main trend of not awarding justice any importance whatsoever are so rare that one can legitimately conclude that justice considerations barely play any role at all in the literature” (p. 27). Kochenov identifies three ways in which scholars tend to approach the subject, which he refers to as “presumed justice, rhetorical justice and silence about justice” (p. 21). His exploration of these three approaches foretells much of what follows in the volume.
The first approach—that of presumed justice—takes as its starting point that the EU was formed around the normative vision of uniting the European states in order to prevent the repetition of the type of conflict and loss that characterized the twentieth century in Europe. As Danny Nicol discusses in his chapter, such a perspective alludes to justice only insofar as that it assumes the “quasi-religious belief” that the radical vision for a reorganized international sphere, as offered in the Treaty of Rome, “basically met the demands of justice” (p. 165). Rather than being subject to any significant degree of scrutiny itself, this understanding of justice through integration is employed to defend and motivate the growth of the EU and its institutions. This utilization of justice bears relation to the second approach Kochenov identifies, “rhetorical justice,” which “aims at concluding the democratic deficit debate with appeals to justice” (p. 28). This approach, which can be seen in Neyer’s chapter, narrows justice to a de-politicized, procedural concept that is offered as an alternative source of legitimacy to the supranational state (p. 211). Neyer’s perspective, arguing for justice as justification, attempts to offer an account of justice that has no need for democracy—a claim that elicits responses within the volume, e.g., Forst (p. 227) and Somek (p. 303). regarding the essential role of the political community in determining what is demanded by justice.
The final and largest category that Kochenov considers is “silence”, which is really composed of two approaches: those that discuss EU law without mentioning justice at all and those that take justice to mean whatever is demanded by legal analysis of the case-law in the conventional sense. Like the two categories before, this approach is marked by a narrowing of the meaning of justice to something largely procedural in practice. Leaving aside the particular labels Kochenov applies, certain commonalities are evident in each of these ways of discussing justice. The shared features point to the conceptual barriers preventing this issue from being addressed more thoroughly. As Kochenov describes them, all of these strategies assume for justice a meaning so narrow that their point of departure virtually eliminates the possibility that the EU could have obligations that would require significant policy changes in the name of justice. In other words, they implicitly defend the status quo in a way that minimizes the EU as an institution from which justice can be demanded. The claim is a controversial one and it generates both criticisms and supporters within the volume, particularly with regard to transferring the ideas from the academic community to the Union’s political realm.
Suryapratim Roy’s chapter focuses on the institutional level, noting that the sparing use of the term ‘justice’ in the context of the ECJ, as well as the EU more generally, has mostly been employed “as a rhetorical device to support functioning institutional processes”, a phenomenon that leads him to consider justice an empty signifier insofar as it is used within the context of the EU and its institutions (p. 83). Devoid of its referent, justice becomes a tool for defending the status quo, or as Roy writes “a tautological institutional self-legitimation mechanism.” For instance, in the case of Kӧbler, the ECJ makes use of the term ‘justice’ only in order to link “the sound administration of justice” with the “stability of law and legal relations.” This usage, Roy asserts, is consistent throughout the case law.
Such an approach reflects an essential convention in judicial reasoning, one that allows the judges of constitutional courts to engage in independent review and revision of law while maintaining the trust of the other actors in the system, including citizens, legislators, and executives. In the case of the ECJ, this applies both on the supranational and state level. The limits inherent in this role, however, imply that while the judicial actor can stretch and otherwise transform the nature the legal system, the advancement of broader claims for justice, such as those that could include redistribution and socio-economic equality, require the involvement of the EU’s more explicitly political institutions.
In this way, the justice deficit cannot be extricated totally from the democratic deficit, a point that becomes a central theme in many of the contributions to this volume, particularly in the enlightening discussions by Gerstenberg (p. 67) and Menéndez (p. 137). The enduring challenge to the democratic legitimacy of the EU has been seen by some as making deeper demands for justice irrelevant. As Williams discusses, the mainstream thought seems to be that “if the EU is deemed illegitimate (because it is undemocratic, corrupt, inefficient, unrepresentative, etc.) then substantive notions of justice cannot have any real place here” (p.35). By ‘substantive’ Williams means those “issues focused on the fairness of distribution of benefits and burdens within a community.” In many ways, much of the volume is about countering this claim, arguing for why the consideration of social justice should not be shunted away. The normative justifications offered by the contributors vary quite considerably, but it is worth considering in some detail the argument offered by Williams—in part because of the fundamental difficulties it reveals.
Williams’s intention is to establish that the EU is the sort of institution from which more substantial obligations of justice could be demanded, and to do so in a way that separates this issue from considerations of democratic legitimacy. To resolve the first step, he offers a “sequence of statements of belief”, which, as he acknowledges, “are vaguely cosmopolitan in character” (p. 34). The initial step is the belief that (1) “our moral obligations to others should not be constrained by historically constructed state borders.” Williams joins this statement with a second assumption: that “if we are to iron out inequalities amongst people wherever they live … then those who are rich should give resources to those who are poor regardless of their location.” The remaining steps go on to establish that such redistribution should be carried out by coordinating institutions that are operated according to “principles of good administration”. Further, and most crucially, he claims that “cross-border institutions” ought to be a part of this redistribution process, given that the obligations are not bound by borders. Together, these steps suggest that there ought to be international institutions engaging in redistribution across states, not as a matter of charity, but as a matter of obligation.
The EU is conceivably a candidate for such an institution, though I consider this an unconvincing argument for the claim that the EU must be the instrument for addressing such an obligation. Leaving unchallenged the cosmopolitan assumption at the center of the argument that cross-border obligations for redistributions do exist, Williams has failed to justify why the EU must be the bearer of justice, as opposed to some other organization, such as the World Trade Organization (WTO). It does not seem to be the case that every cross-border group bears such a responsibility. For example, an international tennis club need not take part in shifting the resources of its wealthier members to poorer ones. In fact, one might think that some of these other institutions are even better candidates. Consider, for example, the UN, which joins together nations of much greater wealth disparities than exist within the EU. For the cosmopolitan-inclined, ought not the gap between Germany and South Sudan present a more pressing obligation of equalization than Germany and Greece?
Williams acknowledges this difficulty, saying that whether the EU would be saddled with these responsibilities would have to be decided “one way or another as a matter of constitutional principle.” In other words, there is a “political decision” that must be made before justice can be demanded from the EU. While Williams treats this as a concern of marginal importance in his broader argument, I take it to reflect a substantial limitation. If we were to grant to Williams that some sort of political decision would have to be made regarding the role of the EU, it remains to be seen who is to make this decision. If we were to settle this question by determining, say, that the ECJ can read such an obligation into the preexisting treaties, then the rest of Williams’s claims regarding how substantive justice could be addressed through the EU’s current abilities and capacities without running afoul of legitimacy claims (besides tangentially in the context those levied against the EU generally) would be on firm grounding. However, it remains to be seen how this ‘political question’ could be answered without having to first address questions regarding the democratic legitimacy of the EU. It appears that Williams has but shuffled to the side the very issue he set out to overcome: the fact that the enduring skepticism regarding the legitimacy of the EU presents an obstacle for addressing substantial norms of justice, including redistribution. Dogged by this persistent matter, it seems unlikely to avoid a state of “permanent quibbling,” which Williams equates to deciding “against the adoption of the obligation.” The result is not a damning one, but it does reveal the deep difficulties that arise when issues of social justice collide with issues of democracy.
The conversation in this volume brings these tensions to the light, making salient that deep moral questions that define the future of European Integration. With Euroscepticism reaching new heights and right-wing political parties increasingly threatening the cohesion of the European project, the EU must reckon with the fact that it has failed to realize the solidarity and social justice declared in its founding documents. If the Union is to emerge with dignity from its current crisis, its leaders must engage in a discourse that grapples with the normative nature of justice. Europe’s Justice Deficit? is a welcome opening salvo in that debate.
 László Andor, Imbalances & Inequalities in the EU: Challenges to the Europe 2020 Strategy, Eur. Comm’n (Oct. 10, 2014), http://europa.eu/rapid/press-release_SPEECH-14-684_en.htm.
 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community art. 3, Dec. 13, 2007, 2007 O.J. (C 306) 1.
 Consolidated Version of the Treaty on the Functioning of the European Union arts. 45, 49, 56, 63-66 May 9, 2008, 208 O.J. (C 115) 47.
 See May Bulman, Brexit: Vote Leave Camp Abandon £350m-a-Week NHS Vow in Change Britain Plans, Independent (London) (Sept. 11, 2016), http://www.independent.co.uk/news/uk/home-news/brexit-nhs-350m-a-week-eu-change-britain-gisela-stuart-referendum-bus-a7236706.html.
 Köbler v. Republik Österreich, 2003 E.C.R. I-10239, para. 38.