Justice within and between Polities

von Christian Joerges

It is not an easy task to talk about a topic like Europe’s justice deficit. As the book we are going to discuss is on Europe and edited by lawyers, I should feel comfortable. But it has such an enormous range. It addresses Europe as a whole in a perspective which is both under-theorised and under-discussed. Via a question mark, authored by Gráinne de Búrca, it invites the commentator to reflect on the sense of the whole project. Readers are asked to embark upon practical philosophy, political theory, the whole rhapsody of “law-and” studies. Dimitry Kochenov, to name just one further culprit, leads his readers beyond philosophical models, while others warn against “agonising over a finely tuned theory of justice (Sionaidh Douglas-Scott). From all this, it follows that I feel compelled to construct a story of my own, one which cannot be the tale of an impartial spectator. My account will depart from a tension inherent to the project, and I will submit three groups of observations:

The first one will deal with what we have experienced about the nature of “the economic”; with the use of this notion, I wish to insinuate an analogy to what we associate with “the social”; namely, the social embeddedness of the economy as Polanyians frame this concern.

The following observations are concerned with the distinction between justice within consolidated polities and justice between such polities. This is a distinction of which legal scholarship became aware thanks to Magister Aldricus of Bologna at the end of the 12th century. Aldricus wondered which law should govern in cases with links to different jurisdictions.

The third part of my story – and a concluding remark – will ask, first, whether a synthesis of both concerns, i.e., of domestic and inter-European justice, is conceivable in principle — and then whether it is still available ...

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