Network member Gráinne de Búrca (NYU) has sent us the following account, which also appears on EUtopia here, of a debate on Thursday June
4, 2015 at the London School of Economics, between Justice Giuliano Amato of the Constitutional Court of Italy (former
Italian Prime Minister) and Professor Christian Joerges (Hertie School of
Governance). The debate marked the publication by Hart Publishing of a new collection of
essays on “Europe's
Justice Deficit?" (available here), edited
by Dimitry Kochenov, Gráinne de Búrca and Andrew Williams.
* * *
Christian
Joerges launched the debate by reflecting on the EU’s origins, and on the
strong influence of German ordo-liberal economic theory in the creation and
design of the European Economic Community. He described an ordo-liberal legal framework as one which “privileges
and constitutionalizes a private-law society”; and which treats as “just” whatever a system of undistorted competition delivers. He asked the audience whether the EU’s
institutional design and its ordoliberalism-inspired “integration through law”
agenda has been an obstacle to the pursuit of justice instead of a means of
fostering it. Citing the various
challenges which have been made to this ordo-liberal vision by writers such as
Fritz Scharpf, Jürgen Habermas and Wolfgang Streeck, he emphasized the
democratic and social embeddedness of markets and their dependence on other
institutions for their capacity to deliver justice, and doubted whether the EU
in its current form has that capacity. Moving
on to the writings of John Rawls and Thomas Nagel on the scope of justice, and on the difficult question of whether “justice
between states,” and particularly any form of redistributive justice, is really
possible, he posed the question: “what are the Greeks entitled to expect from
the Germans?” The EU is better
understood, he suggested, in terms of “inter-democracy” (to use a term derived
from Daniel Innerarity’s work, here) rather than being
thought of as itself a democratic system.
On the current crisis, with its politics of austerity
and governance-by-troika, Joerges argued that the kind of interventionist European
economic and financial management we have seen in recent years is actually far removed
from the ordo-liberal vision, in its reliance on discretionary power rather
than justiciable rules. Finishing on an
understandably gloomy note, he suggested that while the EU’s crisis management
may well destroy southern European economic cultures, the social and
institutional resistance of these cultures means that it will nevertheless be unable
to replace them with some other top-down model of economic governance.
Giuliano Amato,
in response, struck a more positive tone.
While his analysis of Europe’s ills shared much in common with that of Christian
Joerges, particularly as far as the current state of EU affairs is concerned
and the inadequacy of its political institutions and fiscal capacity to support
the economy, he presented both a more positive vision of the EU’s original
model as well as a more forward-looking set of suggestions for how to move the
EU beyond its current state of crisis, discontent, and injustice. He began with the question whether it was
indeed appropriate to apply the standards of justice which are generally applied
to a nation state to an entity like the EU, or whether a functionally limited
economic system could only be appraised by some other standards. In other words: what kind of entity is the
EU, for the purpose of considering questions of justice?
While Joerges had located the founding vision of the EU
in the common market project with its ordo-liberal influences, Amato returned
to the deeper federal vision animating the project of European integration in
the late 1940s and early 1950s, before the demise of the European Defense
Community and its infant-sister European Political Community caused a retreat
from this broader political and social vision.
The decision to emphasize economic integration in the EEC Treaty and to
leave social matters to the states was a strategic sideways step, in his view,
and not a full retreat from the social and political vision. The crucial importance of solidarity was
always evident and indeed present in early European documents like the Schuman Declaration,
and over time in instruments like the European structural and social funds, and
even in the “commutative justice” of EU agricultural policy. Amato pointed to the adoption of the Charter
of Fundamental Rights and the way in which respect for social rights and social
justice gradually came to be articulated in the early and ‘horizontal’ articles
of the treaties as EU values. Taking
into account the evolution of these and other features, he suggested, it is less
easy now to argue that the EU is not a polity to which the normal standards of
justice we expect from a state should be applied. At the same time, he acknowledged, many of these
aspirational treaty provisions are not fulfilled in practice and there is a
great deal of social and economic injustice in the EU today.
Nevertheless, instead of despairing of the EU’s ability
to rise to the enormous challenges facing it, Amato went on to articulate a
series of more positive reflections on the EU’s capacity to do justice as well
as on what steps might be taken to address the most serious kinds of injustice.
In terms of its past and existing
contributions to the advancement of justice, he cited some illustrative examples:
first, the abolition of the death penalty across Europe and the EU’s continued advocacy
for its abolition elsewhere; second, its leading role in the advancement of
gender equality; and, thirdly, its position at the forefront of the promotion
of environmental protection and environmental justice.
As far as future steps are concerned, he suggested that
the EU needs to return to its roots and to reboot its original solidarity-based
vision and project. He drew on a proposal
made at the “State of the European Union” conference at the European University
Institute in Florence last month for the adoption of a new Schuman Declaration,
available here, which
calls for the restoration of solidarity amongst citizens and the revitalization
of Europe. He suggested that instead of
turning away from Europe all except those in the narrowest category of
political asylum-seekers, there should be a return to the EU’s declared
commitment in the Tampere Agenda on migration in 1999 to prioritize the fight
against the roots of poverty in the countries of origin and to recognize the
needs of economic migrants. Finally, he referred
to an innovative proposal, set out in the “new Schuman Declaration” initiative
mentioned above, for the EU to set a minimum threshold of social and health
protection to be ensured by all Member States.
While the states themselves would remain primarily responsible for
social and health protection, they could not fall below this EU minimum
threshold. An EU fund would be
established and in the event that a state lacked sufficient resources to meet
the minimum threshold, the EU would—in the spirit of subsidiarity—restore it from
this fund.
A lively debate
followed these two somewhat contrasting accounts of Europe’s justice
deficit and of the EU’s prospects for advancing rather than hindering the
pursuit of justice across its Member States. Amongst the many different views expressed by
the speakers and the audience, the one message which emerged very clearly from
the entire event was this: Europe’s leaders need to summon the creativity and the
courage to renew the original vision of European solidarity and to act boldly upon
it, if the EU is to move beyond its current bleak and weakened state.
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