(5) The EU Charter of Fundamental Rights

5. The Charter as a Part of the Res publica of the EU

5.1 Rights Protection and Democracy

The Charter may at first glance seem not to fit into a strategy of democratization of the EU. After all, bills of rights are meant to constrain the scope of action of the democratically elected bodies. A bill of rights typically places a power of judicial review in the ‘undemocratic’ (i.e. none elected) bodies such as the courts.

Nevertheless, it has long been argued that a bill of rights was a way to reinforce the democratic legitimacy of the EU. The central idea is that a democracy is not complete without a sufficiently constitutionalized system of protection of fundamental rights.14 In addition it should be recalled that constitutions are themselves choices of the people and as such hardly ‘undemocratic’.

To put it differently, democracy is not only about formulating and enforcing the will of whatever majority happens to exist at the moment being.15 Democracy and rights protection are in this sense mutually reinforcing. This of course applies to those rights that are instrumental to the democratic process itself, like the freedom of expression. But rights also serve to underline the condition of political equality of the individuals that form the political community in question and the pre-condition of democracy.

The constitution seeks to combine the right of the majority to shape the development of society with the right of individuals and minorities to be treated fairly and equally. Decisions taken by the majority should thus not be exclusively in their interest, at the expense of the minority, but should be compatible with the common good of majority and minority alike. By preserving the equality of the members of the community it addresses, the constitution can be seen as a process of public reasoning that goes on in both political bodies and courts alike and which results in a legal order expressing a civic bond between the individuals that form part of it. This legal order, in which common values are purported, constitutes the res publica of the political community in question.

The notion of res publica, from which the noun “republic” is derived, may need some further clarification. It is often translated as “the common good” but more properly it is what citizens hold in common and above the specific interest they share. Res publica departs from the conception of the legal order as a sort of moral dialogue (concerning the fundamental values of the community) based on reason thereby appealing to the rational assent of its members. Viewed as an ongoing moral dialogue striving for coherence and rationality in the law, res publica is better understood as a dynamic concept than as a fixed and unalterable set of values.

The connection between the law and the res publica is particularly prominent in theories that stress law as a reflection of public reason rather than as an expression of command and will (whether by a single ruler or an assembly). The ultimate objective is to achieve freedom understood as non domination of the individuals making up the legal order thereby confirming them as political equals. Non domination means that no one should be the subject of arbitrary will and command, to be freely exploited in pursuance of somebody else’s benefit. It follows that the Law must be in accordance with reason (ratio),16 i.e. the legal order construe a coherent structure that treats all of its subjects as political equals. Law therefore reflects the civic (moral) bond between the individuals belonging to the legal order. Locke famously argued that law expresses a civic morality among the citizens in their horizontal relation:

[. . .]’tis in their Legislative, that the Members of a Commonwealth are united, and combined together into one coherent living Body. This is the Soul that gives Form, Life and Unity to the Commonwealth: From hence the several Members have their mutual Influence, Sympathy and Connexion.17

According to this view, which flowed into practically all modern democratic theories, the deliberative function of the parliamentary body holds a position of paramount importance for the legitimacy of the legal order. It corresponds in the first instance to the parliament to identify and elaborate, i.e. to reason upon, the fundamental values that unite the members of the political community because it is the body that represents more opinions and interests than any other institution. Such diversity in the reasoning is particularly pertinent in relation to rights regulation.

Most rights are by nature more akin to principles than to rules in the sense that a right often needs to be balanced against other rights like, for example, the right of freedom to expression needs to be weighed against the right to privacy. It is possible to come to different conclusions regarding the scope of the respective right and still respect them both as valid principles whereas rules are either followed or not. For these reasons it may seem more appropriate for a legislative body to elaborate on the more precise scope of rights and for a court of law to apply rules.

On the other hand, there are limits to what the elected assembly can decide and the power held by a democratic assembly can never be thought to be arbitrary, i.e. unreasonable, in kind.18 A republican understanding of the nature of power and law as the instrument for securing freedom obviously calls for a check even on the democratically elected legislative.

Checks on the latter are in modern constitutional law most often entrusted to the judicial power, i.e. to a court of one kind or another. However, a court will not often, apart from rather extreme cases where the most basic rights are at stake, be in a position to represent a morally superior body with respect to the elected legislator. A court that bluntly insists on imposing its own values over those of the democratically elected bodies will in the end most likely be either isolated or abolished.

Still, a judicial remedy remains essential for securing non-domination since blind trust in majority rule is not empirically sound. The approach taken in theUSand Canadian supreme courts is instructive regarding the striking of balance between judicial review and majority decision-making in political bodies. According to this view it corresponds to the political bodies to identify the material values and policies to be pursued by the public authorities while the courts are charged with the duty to ensure that these values are ‘universal’ and applied equally to all without any (conscious or unconscious) bias with respect to minorities.19

The underlying idea is to secure integrity in the law meaning that a proposition of law is true if it figures in or follows from the principles of justice, fairness and procedural due process that provide the best constructive interpretation of the legal practice of the legal order in question, i.e. that the proposition follows not only from (narrow) single statutory provisions and cases but rather from the broad scheme of principles necessary to justify it.20

 

14 As argued by F. Mancini and D. Keeling, ‘Democracy and the European Court of Justice’, (1994) The Modern Law Review 175 and by the President of the European Court of Justice Vassilios Skouris (quoted in the House of Lords Research Paper 04/85, The Treaty Establishing a Constitution for Europe: Part II – The Charter of Fundamental Rights 11).

15 For an in-depth analysis see S. Holmes Passions & constraint – On the theory of liberal democracy (Chicago University Press, 1995), particularly Chapter 5 (Precommitment and the paradox of democracy) 134.

16 As previously argued by Cicero in ‘The Republic’, in The Republic and The Laws (Oxford University Press, 1998) 68.

17 J. Locke, Two treatises of government [1689] (Cambridge University Press, 1988) 407.

18 Ibid. 357.

19 This theory is developed in J. Hart Ely, Democracy and distrust – A theory of judicial review (Harvard University Press, 1980).

20 R. Dworkin, Law’s empire (Harvard University Press, 1986) 225 ff.

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