Reasoned ‘Balance’ in Europe's Area of Freedom, Security and Justice

• DOI: http://doi.org/10.1111/j.1468-0386.2010.00541.x
• Author: Alun Howard Gibbs
• Published date: 01 January 2011
• Date: 01 January 2011

eulj_541121..137

Reasoned ‘Balance’ in Europe’s Area of

Freedom, Security and Justice*

Alun Howard Gibbs**

Abstract: This article considers how we might understand a constitutional ‘balancing’ of

goods. In doing so, the article considers the EU’s ‘Area of Freedom, Security and Justice’

(AFSJ) which poses the challenge as to how we balance our desire to feel secure with

commitments to freedom and justice. The approach taken will be to argue that a ‘balance’

is a reasoned judgment, which must be understood in both a symbolic sense but, at the

same time, also rooted in the practice of our constitutional decision making. This enables

a political community to make sense of its value commitments so as to achieve a reflective

balance between them. The article concludes that if the EU is to achieve an area of

freedom, security and justice then it must be capable of developing a balance that can be

a reasoned understanding of this constitutional commitment.

I Introduction

The Area of Freedom, Security and Justice (AFSJ), introduced by the Amsterdam

Treaty of 1997, proposed an ambitious project of cooperation and common measures

relating to criminal justice and police matters, as well as migration, visa and border

control matters. Legal measures historically associated with the sovereignty of the

nation state have acquired an EU character and perspective. In the years that have

followed 1997, the subject matter of the AFSJ has acquired a prominence due to world

events. The destructive capabilities of international terrorism and organised criminality

pre-occupy Member States and citizenry of the EU alike, and prompt the question as

to how we are to feel secure(r)? However, the AFSJ represents a commitment to three

values, not only security, and poses the challenge as to how we are to understand

correctly the balance between each of them. In particular, this article asks whether the

symbolism evoked by a creating an ‘Area’ of common values is unhelpful rhetoric or a

metaphor that inhibits reasoned reflection with regard to pursuing a constitutional

balance. The argument will be made that the development of this symbolic element is

both essential to understanding the legal practice of the AFSJ and also to enhance our

reasoned reflections as to how security, freedom and justice considerations might be

balanced.

*Since this article was accepted for publication a number of important legal developments have taken place,

not least the signing and ratification of the Lisbon Treaty. Whilst the law stated in this article refers to the

pre-Lisbon arrangements, the theoretical insights persist and have, if anything, become more pressing.

** Lecturer, School of Law, University of Southampton. I gratefully acknowledge the comments of the

anonymous reviewer of this article.

European Law Journal, Vol. 17, No. 1, January 2011, pp. 121–137.

© 2010 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

To achieve clarity and precision it is worth outlining the organisation of the argu-

ment. The first sections attempt to tackle the question concerning balance in the

context of conflicting constitutional commitments or goods. Section II outlines the

constitutional development of the AFSJ from its historical roots as intergovernmen-

tal cooperation to the point that it acquired a distincive constitutional form with the

creation of the AFSJ in 1997. I argue that this constitutional character rests upon the

representation that the AFSJ is a place of common goods; freedom, security and

justice. This stimulates an awareness that these goods come to characterise a

common political experience in the EU; and that the EU institutions acquire a legiti-

mate claim to act, for the benefit of citizenry of the EU, in expressing a commitment

to these common goods. Section III explains how making interpretations or assess-

ments about freedom, security and justice as ‘goods’ makes manifest standards or

reference points in order to orientate our constitutional understanding of the rela-

tionship between these ‘goods’ when undertaking particular institutional decisions.

This, therefore, encapsulates the central features of the symbolic, a concern or sen-

sitivity about the standards that emerge from assessments of goods that come to

express a common experience of political life.

Following this it becomes important to understand how the symbolic can aid making

reasoned judgments about balance. At this point it is necessary to consider the con-

ventional view that balance attempts to guide our discussions of the balance between

security, freedom and justice towards measurable risks in order to ensure that we

develop an objective procedure for the deliberations, actually preventing the discussion

of balance becoming political rhetoric or irrational ideology. Whilst conceding that this

may seem a persuasive approach I argue that there is a clear flaw with this. It is not

possible to assess the balance of public goods without considering the symbolic; in

other words we cannot quantify the socially complex meanings by which we come to

understand the balance between security, freedom and justice. Nevertheless, this

concern with an ‘empirical’ balance reminds us that the symbolic cannot be a ‘meta’

theorem nor simple rhetoric or metaphor but must be based on reason. In my argument

this reason emerges from the reflection about the quotidian acts or decisions that

determine how a political community comes to understand its constitutional commit-

ments and symbolic meanings. Hence, balance must be seen as making sense of

our overall experience of living in a political community that has expressed a commit-

ment to different ‘goods’, through the particular decisions or acts of that political

community.

For the lawyer, or the legal theorist, concerned about constitutional practice, this

entails appreciating that law becomes a means of transmitting or conveying a sense that

‘balance’ refers to the way we conduct our political life. In section VI I draw attention

to certain constitutional structures that may affect how we come to conceive the

balance in the AFSJ, and crucially an ability to clearly consider the symbolic features

of such a balance. The purpose, however, is not to advance a package of reforms or

constitutional modifications, or indeed a definitive account of all the constitutional

structures that may be problematic. In place of this, it demonstrates a way of thinking

about balance in the wider context of our constitutional structures in the AFSJ.

II The ‘Constitutional’ Development of the AFSJ

The late 1960s and early 1970s was a period of time of great change and upheaval,

socially and politically. These changes captured a mood that went beyond the

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