A scholarly debate has recently emerged on the need to conceptualize justice at the EU level. In this debate, justice (and injustice) are seen as the key to understanding the EU project and, as such, as a unifying value of the EU. A connection is then required between the aspiration for justice and that of the overall legal architecture, or governance ambition of securing legitimacy for the European system. This paper seeks to go further and elucidate why it is helpful to analyze EU security regulation through the lens of justice as “non-domination” and how constitutionalism offers a useful framework for this process. In doing so, I explore the connection between the notions of justice and justification, and explain why their full comprehension enhances the legitimacy of the EU’s “Area of Freedom, Security and Justice” (AFSJ) project.
In this paper I present a constitutional interpretative theory, which I term the “Platonic Conception of the Constitution”, and apply it to Israeli constitutionalism. According to this conception the constitutional text is only an approximation – an imperfect shadow – of the ideal constitution. Judges should strive to bridge the gap between the written and the ideal constitution, and owe their allegiance primarily to the latter rather than to the former. This theory, I argue, best explains the judicial attitude that allowed the Israeli Supreme Court to bridge the gap between the very partial and incomplete text of the Israeli Basic Laws and a full and functioning judicially-constructed constitution with an extensive bill of rights and strong judicial review. In the paper I present this theory and how it is implicit in Israeli case law, discuss its ties with the Post WWII European conception of constitutional rights, and provide an initial critique of it.
The ideas of the culture of justification – according to which it is the role of the courts to ensure that every act of the state that affects a person is substantively justifiable – and the related right to justification – which claims that every person possesses a moral and, ideally, constitutional right to the justification that the culture of justification recommends – are intuitively powerful and widely discussed ideas in public law scholarship, but their moral foundation is not yet well understood. This paper presents the moral case for these two concepts which centres on the status of every person as a justificatory agent. It argues that under conditions of reasonable disagreement in politics, this status requires that any law or act be justified not only procedurally (for example, in terms of a democratic vote) but also substantively, and it further demonstrates the necessity of the judicial protection of the right to justification as a matter of principle.
Human rights claim to be universal, yet different human and constitutional rights instruments contain different lists and even when the same rights are recognized in the abstract they are often interpreted differently across jurisdictions. I will argue that this variance of human rights practice across regimes and jurisdictions does not undermine the idea of the universality of human rights and should not be thought of as pathological. Instead I will show how, when and why variance is a central feature of a morally persuasive practice of human rights.