On Thursday June 4th, at LSE, a debate was held between Justice Giuliano Amato of the Constitutional Court of Italy (former Italian Prime Minister) and Professor Christian Joerges of the Hertie School of Government to launch the publication by Hart Publishing of a new collection of essays on ‘Europe’s Justice Deficit?‘, 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 explained an ordo-liberal legal framework as one which “privileges and constitutionalises 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 emphasised 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) 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? Continue reading