What are the foundations of justice in Europe? How did the concept of justice develop over time and how has justice been institutionalized in the European Union?

This research paper analyses the timespan between the formulation of Franklin Roosevelt’s Four Freedoms in 1941, and the codification of the – very different – Four Market Freedoms set out in the 1957 Treaties of the European Economic Community (EEC). Whilst many periods in European history could have been selected, it is in this particular period that Europe witnessed an emphasis on a wide range of rights for everyone in the world, including socio-economic rights, and to a stronger focus on market freedoms. Marking moments were the formulation of the Atlantic Charter, the United Nations, the Universal Declaration of Human Rights, the pledge made during the Congress of Europe, the setting up of the Council of Europe and of the European Economic Community.

In general terms, what can be considered the conception of justice that underpinned the early days of the institutionalization of Europe?

In analyzing the understandings of justice as they emerged in key texts and in day-to-day encounters in the key moments described above, it is clear how such understandings shifted over time, shaped not only by the geo-political context but also by individuals and the coalitions that they formed. In these foundational years of Europe, there were clearly conceptions of justice that conquered and were thus codified in legal text, others that still today remain deeply contested and others that were more or less circumvented.

If there was one understanding of justice, one overarching objective shared by all negotiators in the period analyzed, it was that of justice as peace. Another outcome of the negotiations, much less logical to many, was the understanding of justice as liberal freedoms. The ‘Freedom of every person to worship god in his own way’ and the ‘freedom of speech and expression’ that Roosevelt formulated as what was essentially at stake in war, also became key objectives of peacetime cooperation. In terms of the institutional architecture needed to guarantee both peace and these particular freedoms, it was supra-nationalism that proved victorious. Such supra-nationalism went much further than the mere inter-governmental cooperation in the United Nations. It included the commitment of the nations that founded the Council of Europe to hand in part of their sovereignty to strengthen the rule of law at a European level – the European Court of Human Rights, after all, was given the mandate to control whether states complied with their human rights obligations. In these choices one discerns a concept of justice as working together, with the movement ‘towards an ever-closer union’ as a manifestation of justice in itself.

Other concepts, side-lined in the process, were only to emerge much later. Most notably this applies to the understanding encapsulated in Roosevelt’s ‘Freedom from Want’, which can roughly be translated as redistributive justice, with social and economic rights as key stepping stones towards this aim. Justice as representation was similarly side-lined. What was at stake here was who would get to participate in the newly-shaped European polity, and in what manner. The groundswell movement for such a polity, consisted of individuals and what would these days be called civil society. A third conception of justice for which the seed was planted in the post-War era, but which would remain in the freezer for half a century afterwards, was that of justice as accountability. Nuremberg came to stand for an ideal closely related to natural law, the notion that there are certain crimes so heinous that they shock the conscience of mankind, and thus deserve persecution by the international community – whatever the laws of the land. This understanding of justice made it to the Genocide Convention, but its actual institutional consequence – the setting up of a permanent international criminal court to prosecute the crimes concerned – was not taken any further as the Cold War set in.

For all the openness in the post-War period, Spinelli’s ‘molten matter’ saw very little attention for a number of understandings of justice which a modern-day spectator would consider as key. For one, Roosevelt’s application of freedoms to ‘everywhere in the world’ would largely prove to be a hollow phrase. The idea of universal justice for all mankind might have been rhetorically present in negotiations on the Universal Declaration of Human Rights, but the millions of people in European colonies, under colonial rule, were quickly exempted from the justice codified in the post-War period. Finally, it is striking to which degree justice as recognition of minority rights was absent in post-War discussions. The protection of minorities was a central object of international cooperation in the interbellum, and direly needed in the period after the Second World War. Still, there were very few attempts to codify protection of those groups that suffered most from discrimination because of their position as a group.

It is striking how these institutionalized conceptions still cast their shadow over Europe today. What this paper calls the ‘contested’ and the ‘circumvented’ conceptions of justice – justice as redistribution, representation, accountability, universality, and recognition of minorities – have remained salient, or have become even more salient over time. The narrow understanding of justice as human rights in general, and liberal and political rights in particular, has led to critiques on the lack of attention for not only social and economic rights, but also for social and economic justice in the broader sense. The lack of accountability for large-scale violence, be it during the war or before – as in the case of Armenia – continues to dominate feelings of (in)justice in Europe. One of the other key critiques of Europe today, concerning the lack of democratic legitimacy, can also be related to conceptions of justice as participation and representation side-lined in those early days. Finally, the largest challenge facing Europe today can be argued to be global inequality. Here, too, the lack of attention for universal justice in the early days of European formation casts its shadow over current affairs. But also within Europe itself, the lack of attention for equality, and for the needs of minorities – as two sides of the same coin – remains one of the most prominent justice concerns. An understanding of the place of such conceptions of justice in earlier periods of European history can help see how these understandings were also once trickles or streams feeding into the river of justice in Europe, and could be strengthened again in the future. If justice, as institutionalized and codified, was the work of men in their times, it is also possible for the men and women concerned about the course it took to renegotiate its contents in this day and age.

By Barbara Oomen and Alexandra Timmer
written for the ETHOS Project as Working Paper within D3.2
Find the full publication at: https://ethos-europe.eu/publications