Abstract
In the intersection between criminal law, constitutional law and political theory, Ester Herlin-Karnell’s latest monograph, entitled The Constitutional Structure of Europe’s Area of ‘Freedom, Security and Justice’ and the Right to Justification, offers a fascinating journey to the theoretical discourse that encapsulates the Area of Freedom, Security and Justice’s (AFSJ) structural characteristics. Perusing the 200 pages of the book, the reader is confronted with a mélange of long-lasting questions and fundamental concepts that stem from different theoretical fields and seek to shed some light on the constitutional intricacies of the EU's AFSJ.
The subject matter of the book evolves around the constitutional structure of the AFSJ, a topic with which the author is familiar. Following some of her previous publications, e.g. The Constitutional Dimension of European Criminal Law (Hart Publishing, 2012), Herlin-Karnell has devoted a significant part of her research over the past years to build bridges between constitutional law theory and EU criminal law. Yet, with this latest book she brings the question of the AFSJ’s constitutional structure to the next level, by attempting to establish a normative framework that will strengthen the constitutional identity of the AFSJ and reinstate justice at its heart.
At the starting point of the author’s argument, one finds a pragmatic observation: the AFSJ is heavily tilted towards the idea of security. Building on the assumption that in a reactive and security-oriented AFSJ there is a lack in justice-oriented reasoning, the author undertakes the task to advocate for an elaborate concept of justice. It should be made clear from the outset that when the author talks about an elaborate concept of justice, what she means is a normative concept that goes well beyond the mere administration of justice and the individual’s right to access a courtroom.
The clear structure of the book, which is organized in seven chapters, and the nuanced and well-structured writing style enable the reader to follow closely the thread of the author’s thinking. Following the introductory remarks and a comprehensive outline, chapter 2 begins by clarifying the concept of non-domination and explaining how it relates to the EU’s constitutional landscape and security regulation. More specifically, the republican concept of non-domination constitutes the cornerstone of the author’s theoretical construct; Herlin-Karnell argues that the constitutional framework of Europe’s AFSJ can be founded upon the idea of justice as non-domination. Although this is an area that is infrequently the focus of attention for EU criminal law scholars, the same cannot be said for scholars in the field of constitutional law and political theory. Non-domination presupposes an egalitarian standpoint and implies the absence of any agent who can arbitrarily interfere with one’s freedom of choice. These two variants of non-domination, i.e. justice as non-domination and freedom as non-domination, play a central role in the author’s attempt to shape the AFSJ’s constitutional identity. In the EU context, non-domination is seen as a matter of equality among Member States and it is inextricably linked to the notion of justification, whereas “poorly drafted legislation and deficient legal reasoning in the Court of Justice” are signs of domination in the supranational level.
In chapter 3, the author discusses the right to justification. The question of what kind of justification owed by the EU to its citizens – and to Member States – when acting on the security field is linked to the question of justice. Therefore, this chapter provides an enlightening discussion on the different conceptualizations of justice. It is impressive how comfortably the author handles what is probably the most heated and perplexed debate in legal and political theory. What the author eventually asks is whether, despite the different theoretical standpoints, there should be a shared sense of justice in the EU, namely a normative concept that goes beyond the narrow-sighted view of the administration of justice. Subsequently, in chapter 4, the right to justification is associated with proportionality, which is seen as a more tangible concept. In the EU context, the principle of proportionality knows many faces and it does not constitute a one-sided tool, as it protects the interests of both the individuals and the Member States. According to the author, the proportionality test balances the seemingly contradicting interests within the AFSJ, ensuring the just and fair application of EU law. The significance of proportionality reasoning needs to be founded on the ability to promote and establish solidarity as an EU constitutional principle.
The book’s emphasis shifts in chapters 5 and 6; the author sets aside the theoretical discourse and zooms in on two practical examples within the AFSJ: the ongoing migration crisis and the never-ending fight against terrorism. These two chapters examine how the right to justification plays out in real life and how the constitutional concepts that were discussed in the book apply in a multi-speed EU with different levels of integration. According to the author, the preventive nature of the AFSJ’s security legislation can be counterbalanced by applying the right to justification, in an attempt to safeguard individual rights and constitutional values from ill-justified coercive powers. Building on Joseph Raz’s normal justification thesis, the author argues that there should be a justifying reason for the EU’s coercive action and that securitization is not a good reason in itself. Furthermore, the author looks at how the Court of Justice of the European Union can act as a constitutional gatekeeper for the EU, while also examining the role that national courts can play in upholding European constitutional values. Finally, in the closing chapter of the book, the author summarizes the main arguments in a very comprehensive way, while also reaffirming the book’s overall purpose.
There are many different ways in which one can read Herlin-Karnell’s work. The greatest accomplishment of this monograph is that it reorients the discussion about the AFSJ and puts the spotlight on the questions that matter the most. The author has undertaken a challenging, yet necessary task; to strengthen the constitutional identity of the AFSJ and to reinstate the balance between justice and security. The reader can admire the pluralistic nature of her arguments and her remarkable ability to delve into years of political and philosophical reasoning and move comfortably among different schools of thought. On top of that, the impressively thorough bibliography serves as evidence of the book’s high quality and points to the author’s solid theoretical background.
In her book, Ester Herlin-Karnell acknowledges the need for further discussion on normative ideas and the ideal of justice, as well as the need to critically assess the structure of the AFSJ. Departing from a discussion that is usually oriented towards ad hoc instruments and policies, Herlin-Karnell brings a different perspective to the table and points to the big picture, with well-articulated and compelling arguments that seek to advance the debate in the field of EU criminal law. After all, with her attempt to highlight the constitutional intricacies of the AFSJ, Herlin-Karnell advocates for a European Union that should be based on shared responsibility and solidarity, in other words a European Union based on the idea of justice.