Human rights as a basis for justice in the European Union

Abstract

Justice is a contested concept. A more graspable version of it, it is argued in this paper, is an understanding of it in the context of what is deemed as "injustice" rather than justice. As such, the paper takes a markedly different approach than the perspectives which have emerged so far. A main theme of this paper is the disjunction between, on the one hand, strong reactions to injustice, and a desire for some affective dimension to the EU, some normative adhesive that might bind the EU as an ethical entity; and on the other, the very great difficulty in identifying an enforceable concept of justice in an EU that continues to be driven by a market mentality. There will always remain a gap between the aspiration for justice and its achievement. While the notion of an EU that does not aspire to justice is unthinkable, and EU law must at least hold out a prospect of justice, the gap between aspiration and achievement remains huge. However, this paper also argues that it is the very sui generis, supranational status of the EU that creates particular obstacles to the realisation of a shared sense of justice. Due to this structural limitation, it is argued that any agreed concept of justice will remain minimalist. However, human rights remain a powerful symbolic and actual force for justice and a better focus for its achievement, whether we understand them as a singular articulation of justice, or as free-standing moral concepts in their own right. It is also crucial to retain a strong sense of injustice and to assess every element of EU law on that basis. This discussion paper is part of a series of contributions to the conference "Towards a Grammar of Justice in EU Law", which took place on 6-7 November 2014 at VU University Amsterdam, sponsored by ACCESS EUROPE Amsterdam, VU Centre for European Legal Studies and the Dutch Research Council VENI grant. (author's abstract)