This working paper examines how justice as representation, redistribution and recognition permeate the European legal order(s). It first discusses the institutionalization of justice through particular legal rights, and the relevance of vulnerability to deliver justice, before focusing on the analysis of certain particular rights (vote, housing and education).

An important philosophical framework for analysing justice is that of moral duties. In Europe, legal justice is conceptualized primarily in terms of rights. Prominent positions in legal and political theory rely on the concept of rights to discuss questions of moral duties and justice. Yet, amongst legal theorists, legal positivists warn that the law itself needs not be patterned in terms of moral duties. Some insist on the divide between positive, that is real, existing, law and moral duty precisely because this allows us to develop a more critical normative evaluation of laws. This position informs our task, which seeks to explore (the lack of) justice in the way (the) European legal order juridifies the rights of vulnerable minorities.

Legal rights come under a variety of names in actual legal orders (positive law) in ways that do not always track the normative approaches to understanding and justifying (legal) rights. In legal doctrine, legal rights can be ‘positive’, which means that they correspond to a positive obligation on the part of the state to bring about the realization of something, or ‘negative’ in the sense that they protect the rights-holder from state interference in a protected sphere of action. Moreover, the common European understanding, rights are labelled differently according to their origin: constitutional and fundamental rights are those that are guaranteed in constitutional instruments, while human rights refers to those that are guaranteed in international human rights treaties. This creates a sort of ‘hierarchy’ of rights, which matters in terms of legal authority, but  does not necessarily correspond to the distinction between basic rights and other human rights in normative legal philosophy.[1]

In reality, the different sources of legal rights intermingle. Thus, for the purposes of this project, expressions like the ‘right to vote’, the ‘right to housing’ or the ‘right to education’, when used as such, can refer to any of these layers. There is nonetheless a scale in the way these rights are institutionalized from the most abstract guarantees regarding a particular right from a universal/international perspective, to increasingly particular concretizations in regional, national (domestic) and sub-national (local) levels. Furthermore, international and European standards allow a different scope of manoeuvre for national authorities in the concretization of each right. Different sources can be in conflict with one another, or might leave justice concerns unaccounted for in other respects. Therefore, it is important to examine all these legal sources when investigating the institutionalisation of justice in European legal orders. The European legal order is structured in terms of rights claims and – in what is certainly an attempt to mitigate injustice – vulnerable minorities are protected in terms of their legal rights. The European justice system, is centred on the confrontation of legal norms devised to pursue different aims, namely the protection for human rights and European integration, which makes complex and prone to tensions and conflicts. A review of the way different legal orders ‘institutionalise’ justice claims, in terms of legal ‘rights’ can help reveal the dominant conceptions of justice which infuse European legal rules, and the situations of injustice which they may give rise to. An interesting development is the growing use, and relevance, of the notion of vulnerability. Developed in the context of human rights law, it is making its way into EU law, especially ‘soft law’. Even if not yet used in explicit Treaty provisions, it increasingly serves as a point of reference for the design of EU policies, and in the interpretation of EU law.

In all, there is a rise in relevance of international, European human rights and EU law in all legal fields under investigation. The way in which these legal orders interrelate can be considered a complexity challenge, to be understood as a pyramid, a network or otherwise. This complexity is managed by concepts like the ‘the margin of appreciation’ (for the ECtHR)) and subsidiarity, supremacy and constitutional identity (for EU law). What the interplay between legal systems means for the substance of a given right, however, depends on the national context – the focus of deliverables 3.4 -3.6.

By Marie-Pierre Granger, Barbara Oomen, Orsolya Salát, Tom Theuns & Alexandra Timmer
written for the ETHOS Project as Working Paper within D.3.3
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