WPS 8-2014 Politicising Europe's Justice Deficit - Wilkinson - Final


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Politicising Europe’s Justice Deficit:  

Some Preliminaries 

 

 

Michael A. Wilkinson 

 

 

LSE Law, Society and Economy Working Papers 8/2014 

London School of Economics and Political Science 

Law Department 

 
 

 



 

 
 

 

Politicising Europe’s Justice Deficit:  

Some Preliminaries 

 

 

Michael A. Wilkinson * 
 
Abstract: Normative political theory is divided on whether questions of distributive justice 
properly extend beyond the state. From a functionalist perspective, however, justice reflects a 
balance of material forces, subject to the logics of ‘market’ and ‘social’ justice, or ‘capitalism’ 
and ‘democracy’. The justice ‘deficit’ is the imbalance or disequilibrium in these logics, an 
imbalance which the constitution of the post-war European state stabilises through their 
constraint. European integration, initially an important feature of this post-war settlement, now 
increasingly comes to be viewed as a significant threat to it. Whereas market logic and capital 
have been rapidly supra-nationalised, social-democratic logic has struggled to transcend the 
state, the EU, in particular, lacking the channels of contestation to legitimise redistribution. 
This leads to an imbalance in the forces of capitalism and democracy, a justice ‘deficit’, which 
destabilises national as well as supranational institutions, but also leads to questions being 
asked of what Germans owe Greeks, or vice versa. The justice deficit and reaction to it now 
appear to be threatening core features of state sovereignty. But it also suggests that the logic of 
the state – and the question: to whom are obligations owed? – must itself be subject to 
contestation; the dilemma of market and social justice, or capitalism and democracy, must be 
replaced with a trilemma, of market, social and democratic justice.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

                                                      

* Associate Professor of Law, London School of Economics and Political Science. I would like to thank, 
with more than the usual disclaimer, Floris de Witte, Samuel Tschorne, Alexander Somek, Hans Lindahl 
and Jacco Bomhoff for comments on an earlier draft. A revised version of this paper will appear in D. 
Kochenov, A. Williams and G. De Burca (eds) Europe’s Justice Deficit? (Hart, 2014, forthcoming). I would 
like to thank the editors for their invitation, patience and encouragement.  
 



 

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Today owners of financial capital are working with international organisations and 

debt-ridden national states to insulate once and for all the economic economy 

from the moral economy of traditional social obligations and modern citizenship 

rights – and with greater prospect of success than ever in the four decades since 

the 1970’s. As democratic states are being turned into collection agencies on 

behalf of a new global haute finance, market justice is about to prevail over social 

justice, for a long if not an indefinite period of time. In the process those who 

have placed their confidence as citizens in capitalist democracy must concede 

precedence to those who have as investors placed their money on it.  

 

[Wolfgang Streeck, ‘How to Study Contemporary Capitalism’ (2012) 53 European 

Journal of Sociology 15-16.] 

 

 

 

INTRODUCTION 

 

Europe is awash with deficits. In addition to the various economic deficits 

engulfing the Eurozone (and elsewhere), the EU has been said to suffer a 

democratic deficit, a political deficit and a social deficit, each of which predates the 

financial and subsequent sovereign debt crises beginning in 2007.1 None of this is 

new to the seasoned observer of the EU. Only now, however, is discussion 

turning to its ‘justice deficit’. Not merely pointing to the aggregate of these other 

deficits, accusation of a justice deficit suggests something more fundamentally 

rotten at the heart of the project. Justice, after all, is the sovereign virtue.2 

Even if it is curious that the measurement of this virtue is now expressed in 

the language of economics – a justice ‘deficit’ – the very measure of the EU in 

terms of its justice, or rather, injustice – which is where the accusation points – 

suggests that a threshold has been crossed. After all, dominant strands in the 

analytical tradition of normative political theory have not infrequently resisted or 

outright rejected its applicability to domains beyond the nation-state – including 

the nascent EU polity – due to the absence there of the relevant political 

community.3 Other commentators continue to justify the political, democratic and 

                                                      

1 On the democratic deficit, see S. Hix and A. Follesdal, ‘Why there is a Democratic Deficit in the EU: A 
Response to Majone and Moravscik’ (2006) 44 Journal of Common Market Studies 533; on the political 
deficit, see R. Dehousse, ‘Constitutional Reform in the EC’ in Hayward (ed.) The Crisis of Representation in 
Europe (Abingdon, Frank Cass, 1995); on the social deficit, see C. Joerges and F. Roedl ‘Informal Politics, 
Formalised Law and the Social Deficit of the European Union’ (2009) 1 European Law Journal 1-19.  
2 Analysis of Europe’s justice deficit could proceed by investigating the treatment of refugees and asylum 
seekers, allegations of complicity in torture and processes of extraordinary rendition, collusion in wars 
and occupation of dubious legality, mass surveillance programs and other threats to civil liberties. None 
of this will be dealt with here. 
3 See e.g. T. Nagel, ‘The Problem of Global Justice’ (2005) 33 Philosophy and Public Affairs 113. 



 

 

Michael A. Wilkinson                               Politicising Europe’s Justice Deficit: Some Preliminaries  

 

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social deficits beyond the state or to deny them normative significance in the first 

place.4 

The purpose here is not to engage directly in debates over the correct theory 

of the reach and scope of justice claims, over the respective merits of 

libertarianism and egalitarianism or over the precise limits of the polity within 

which one may properly speak of justice or injustice. It is rather to consider the 

way that European integration is altering – whether by exposing, concealing or 

constraining – the politics of justice; in particular, the way integration is destabilising 

the national frame but not (yet) offering up an alternative platform for subjecting 

transnational justice claims to democratic contestation.  

There is a reason for taking an explanatory rather than a normative approach. 

Whatever normative theory of social justice we happen to endorse (including its 

wholesale rejection),5 the distribution of individual, collective and common goods 

will in practice, in any really existing society, be determined, at least in part, by 

political and social struggles for equality. This means not only over the 

economists’ ‘scarce resources’ but also over public goods such as education and 

health and non-material goods such as solidarity, recognition and representation.6 

Since in democratic society ideological superiority will – in theory at least – always 

be up for grabs, arguments of principle in favour of or against redistribution, 

recognition and representation will merely be another factor in the fight over and 

for such goods.  

Wolfgang Streeck has recently modelled struggles over distribution on the 

tension or ‘dynamic disequilibrium’ between capitalism and democracy, where they 

are understood not as organised competitions for the accumulation of money or 

votes but as representing two principles or logics of resource allocation - market 

justice and social justice. This enables us to conceptualise a justice deficit as the 

result of an imbalance in these two logics. And, in Streeck’s account, imbalance 

will tend towards crisis, provoking a reaction of sorts to remedy the imbalance or 

at least prevent it from becoming critical for the society (section 1).7  

But in what context is this relationship played out? The contest between 

market and social justice does not occur in a vacuum. Historically, it is the state 

that sets the framework for the negotiation and recalibration of the relationship 

between market and social justice, through institutional and ideological, coercive 

as well as consensual means (section 2).  

                                                      

4 See e.g. J. Neyer, ‘Justice, Not Democracy: Legitimacy in the European Union’ (2010) 48 Journal of 
Common Market Studies 903.  
5 On the rejection of patterned theories of justice, see R. Nozick, Anarchy, State, Utopia (New York, Basic 
Books, 1974).  
6 Only in part because in practice levels of inequality will depend not only on the basic structure of the 
state, and its reception to political and social struggles, but also on what has been called the principle of 
community, the extent to which questions of distributive justice arise for persons in their daily lives. See 
e.g. G. Cohen, ‘Back to Socialist Basics’ (1994) New Left Review 3. 
7 See W. Streeck, ‘Taking Capitalism Seriously: Towards an Intuitionalist Approach to Contemporary 
Political Economy’ (2011) 9 Socio-Economic Review 137; W. Streeck, ‘How to Study Contemporary 
Capitalism?’ (2012) 53 European Journal of Sociology 1; W. Streeck, ‘The Crises of Democratic Capitalism’ 
(2011) 71 New Left Review 5; W. Streeck, ‘Markets and Peoples’ (2012) 73 New Left Review 63.  



 

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In recent historical perspective, the political constitution of the post-war state 

has been conceived as aiming to prevent or forestall crisis by constraining the logics 

of democracy and of capitalism.8 On this account, the process of European 

integration is a significant feature of the post-war settlement – designed to prevent 

majoritarian democratic excesses but without surrendering the state’s ability to 

constrain the logic of capitalism (section 3).9 

But European integration is now exposing the fragility and dysfunctionality of 

this settlement. With the apparent boundlessness of markets and extension of 

market logic, but with democracy struggling to transcend state borders, the 

structural asymmetry in Europe is now proving destructive, not only of the 

supranational constitution but also of national constitutional settlements. We can 

conceptualise the EU’s ‘justice deficit’ as representing this imbalance in favour of 

capitalism and market justice, where, in the absence of a European democratic or 

social movement, any rebalancing is to come from the executive power of the 

member states, or rather from certain among them (section 4).  

And yet, whatever the prospects of supra- or trans- national democracy, 

Europe’s justice deficit is de-politicised with market logic presented in naturalistic 

terms, making it appear necessary and inevitable, an expression of inescapable 

pressures to modernise and gain competitiveness. It will be argued that pre-

requisite to dealing with the justice deficit is its politicisation. But this may come at 

a high cost in terms of the stability and unity of the project of integration, and is 

(therefore) unlikely to come from the top-down, from the political and economic 

elites who have driven the project since its inception (section 5).  

I will suggest in the concluding section (6), drawing on the recent work of 

Nancy Fraser, that ‘the state’ – understood as the framing of relevant boundaries – 

must itself be politicised, subject to contestation and struggles of recognition and 

representation. The challenge, it is argued, is to substitute Streeck’s dilemma for a 

trilemma, of market justice, social justice and democratic justice. The purpose of 

this paper is not to proffer institutional responses to this trilemma, nor even to 

specify its social and political conditions; it is to explore some preliminaries for a 

fuller understanding of the politics of Europe’s justice deficit.   

 

 

 

1. CONCEPTUALISING A JUSTICE DEFICIT 
 

A justice deficit can be explained functionally as the result of an imbalance 

between the logic and forces of capitalism on the one hand and those of 

                                                      

8 I draw here on the work of Jan-Werner Müller, Contesting Democracy: Political Ideas in Twentieth Century 
Europe (Yale University Press, 2011).  
9 Chris Bickerton’s argument that the post-war logic fundamentally changes in the neo-liberal period 
beginning in the 1970’s will also be drawn upon, see C. Bickerton, European Integration: From Nation-States 
to Member States (Oxford, OUP, 2012).  



 

 

Michael A. Wilkinson                               Politicising Europe’s Justice Deficit: Some Preliminaries  

 

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democracy on the other. A social justice deficit would then exist where the former 

gains an upper hand over the latter. A compelling account of this imbalance – or 

‘dynamic disequilibrium’ – between democracy and capitalism has recently been 

presented by Wolfgang Streeck.10  He argues that the relationship between 

capitalism and democracy will tend towards a critical imbalance as capital tends to 

dominate, and to such an extent that democracy itself will be threatened, as 

revealed most dramatically in Europe since the recent financial crises.  

In Streeck’s account, capitalism and democracy, or ‘markets’ and ‘peoples’ 

represent rivalling constituencies, with contrasting ‘logics of action’, which we can 

label as ‘market justice’ and ‘social justice’ respectively.11 In terms of societal 

values, these suggest two different principles of resource allocation: one operating 

according to marginal productivity, and merit on a ‘free play of market forces’ and 

the other based on social need, and ‘certified by the collective choices of 

democratic politics’.12 This reflects a clash in the respective ethical demands of the 

two major forces in the modern democratic capitalist state, rather than merely a 

functional clash of interests between money and votes. If the market imposes a 

marginal ethics (by advancing the prospect and expectation of rational egoism and 

competitive accumulation without limits), democratic society promises a maximal 

ethics (by holding out the prospect of and need for solidarity, collaboration and 

concern for human well-being).13  

By rejecting the standard contrast between an amoral market system and 

moral obligations of solidarity, persons and political communities are in this 

account instead torn between obligations on either side of the justice balance, 

obligations that although distinct are not incommensurable. On the one hand, 

market imperatives present individuals and communities with the duty to adopt 

and adjust to economic change, to accumulate wealth, to be entrepreneurial in 

spirit, competitive, and, above all, efficient. On the other hand, democracy calls 

forth solidarity, the collective obligation to protect weaker individuals from the 

fallout of capitalist excesses and to prevent or attenuate the ‘creative destruction’ 

that is central to liberal progress or ‘modernisation’; debate then occurs ‘over the 

moral limits, if any, to the pursuit of economic advantage’14 where that pursuit and 

its limits are themselves understood as normative forces.   

The paradox is that the market ethos of a capitalist political economy is, for 

reasons of systemic survival, parasitic upon the moral obligations imposed by 

social democratic norms.15 By tempering and correcting capitalist excess, these 

prevent disequilibrium from turning into outright societal collapse.  

                                                      

10 See note 7 above.  
11 A. Schäfer and W. Streeck ‘Introduction’ in A. Schäfer and W. Streeck (eds.), Politics in the Age of 
Austerity (Cambridge, Polity, 2013) 19.  
12 Streeck, ‘Crisis of Democratic Capitalism’, note 7 above, 7.  
13 Streeck, ‘Taking Capitalism Seriously’, note 7 above, 137.  
14 Streeck, ‘How to Study Contemporary Capitalism?’, note 7 above, 23. 
15 Id. But, Streeck notes, ‘only in a functionalist worldview’ is the success of efforts at taming capitalist 
excesses actually ‘guaranteed’, note 7 above, 156.  



 

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There is therefore an interdependence rather than straightforward conflict 

between the two principles of resource allocation. But this is not a happy or stable 

relationship. As Streeck concludes, capitalism not only necessitates a continual 

demand for moral and social support in order for the system to stay afloat, but it is 

also always undermining that very same support because of its own internal logic. 

Because of this pathological tendency, capitalism is an inherently ‘self-destructive 

social formation’.16 Democratic capitalism is then conceivable ‘as a political 

economy in permanent disequilibrium’, pushed forward inexorably by continuous 

innovation on the part of capital and ‘pervasive political conflict over the 

relationship between social and economic justice’. Disequilibrium will periodically 

lead to crisis, not least because of the inability of capital to think beyond its own 

short-term interests; even the environmental conditions of our survival are 

reducible to a mere ‘externality’.  

With this relationship in view, capitalism is systematically reconfigured, 

because profits and losses – as well as resultant gulfs in socio-economic equality 

among persons – are exposed as non-naturalistic, ‘the outcome of a struggle 

between conflicting concepts of and claims to justice […]’ rather than between an 

irrational moral code and an amoral but rational objective economic law.17 

Rational and public choice philosophy then appear in a new light; rather than 

purely scientific, positivistic theories that remain above the political fray, they can 

be seen as performative and ideological, imposing a dominant market logic and 

narrow view of rationality on neighbouring disciplines and occluding alternative 

values. Self-interest is the only proper mode of rationality, and, eventually, ‘greed 

is good’. This subordination of discourses of legitimacy to a particular economic 

rationality is achieved through ‘naturalising’ the logic of the market. The 

technocratic dictates of economics then come to speak ‘with the pathos of natural 

law’, controlling and even colonising the political debates over justice and 

inequality.18 Economics is the method; the aim is the transformation of the soul.19  

 

 

 

2. HISTORICISING A JUSTICE DEFICIT: THE ROLE OF THE 
STATE 

 

Although recent political philosophy in the social contract tradition investigates 

justice primarily as a normative question, seeking for a resolution or reflective 

                                                      

16 Streeck, ‘How to Study Contemporary Capitalism?’, note 7 above, 25.  
17 Streeck, ‘How to Study Contemporary Capitalism?’, note 7 above, 16.  
18 G. Teubner, Constitutional Fragments (Oxford, OUP, 2012) 32-34. For Teubner, the neo-natural law 
conception of economic rationality is nothing less than ‘grotesque’ because it substitutes causal 
explanation for normative legitimacy, bypasses political debate, and overlooks the potential instability of a 
constitution based on science that has to resolve controversies which cannot be scientifically resolved. 
19 To misquote Margaret Thatcher.  



 

 

Michael A. Wilkinson                               Politicising Europe’s Justice Deficit: Some Preliminaries  

 

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equilibrium, Streeck’s analysis exposes it as an irresolvable, practical, political 

problem. This becomes even more apparent when attention is given to the unit 

within which the question of justice is properly raised, which is frequently, but 

often implicitly, assumed to be a state.20 And the standard reason given, if one is 

given at all, is that only within the state does the requisite unity of coercion and 

community exist, generating and sustaining the capacity to provide for basic 

collective goods.21 Although in some apparent degree of tension with each other, 

coercion and community are presented as complementary rather than in 

competition. 

Both are paradigmatic attributes of statehood. First, the capacity to dominate, 

the monopoly on legitimate violence, which in the Weberian tradition is the 

defining feature of the modern state and in liberal political theory key to 

understanding why its authority requires normative justification, is, at least 

formally, an exclusively sovereign power. To this must be added, second, the sense 

of being part of a collective endeavour or ‘community of fate’, necessary for 

sustaining a functioning public sphere and legitimising any non-trivial 

redistribution of benefits and burdens. This too is elusive once we move beyond 

the state’s borders.  

Only by combining these features in a contiguous manner, when a state not 

merely coerces but does so ‘in our name’ or for our collective benefit, are 

obligations to remedy injustice and duties of redistribution incurred, above the 

minimum moral duties of humanitarian intervention that might exist outside the 

state. We ought to be concerned with equality because, and when, we can and do 

value the reciprocity that it entails. The unity of coercion and community is 

therefore central to the modern state’s capacity to negotiate the tension between 

capitalism and democracy, market and social justice. Since beyond the state there 

is no (or at most – as in the case of the EU – only relatively ineffective) political 

apparatus that unites coercion and community, there can be no egalitarian duties 

of redistribution.22   

But from a political perspective, this tension is not resolved in an original 

position or final determination of where the balance of justice rests; rather the 

state provides a more or less stable framework within which the ceaseless 

competition and interaction of interests and ideas might be negotiated relatively 

peacefully.23 In practice the state manages the tension between capitalism and 

                                                      

20 In Rawls’s later work, exploring the international basic order, the relevant unit is explicitly a ‘people’; 
see J. Rawls, Law of Peoples (Cambridge MA, Harvard University Press, 1999). 
21 In Nagel’s ‘political conception’ it is coercion and co-authorship that combine as the relevant 
characteristics giving rise to obligations of justice within a state, against the cosmopolitan account, see 
note 3 above. Nagel’s position is not of course unchallenged, see e.g. A. Julius, ‘Nagel’s Atlas’ (2006) 
Philosophy and Public Affairs 176 - 192. And there are those in the Rawlsian tradition who have argued for a 
more cosmopolitan or global basic structure.  
22 We may, however, have moral duties to create such authoritative institutions (and mechanisms of 
redistribution) in the first place. 
23 I do not claim that the state is merely a neutral arbiter between these forces; it is undoubtedly more 
complex than that. Beyond some suggestive comments, this will not be the place to go into detail into the 
history and concept of the state and its role in the balance of justice.  



 

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democracy in order to contain or forestall any crisis that might result from the 

imbalance in their relationship. 

From this perspective, coercion and community are also instrumental to the 

maintenance of stability in spite of, and even to legitimise existing and continuing, 

inequality. The idea of a community of fate, binding rulers and ruled, not only 

facilitates redistribution but also softens, if not eradicates, class conflict. It pacifies 

struggles over justice by appealing to a sense of communal identity, which is not 

merely left to grow spontaneously or organically, even if it could be nurtured in 

that way. This is periodically revived as a political project – however insincerely – 

with communitarian mottos such as that currently in vogue, ‘we are all in it 

together’, and ironically by those who only recently urged that ‘there is no such 

thing as society’. From a functional perspective, recall, resources of solidarity are a 

necessary complement to a market economy, to maintain or re-establish order 

either by rebalancing the justice disequilibrium or encouraging the population to 

tolerate, accept or at least acquiesce in the inequalities that the market permits, and 

even depends upon. In the absence of such resources of solidarity, politics will 

require more coercive mechanisms.  

There is, to be sure, nothing new in the perception that the tense and even 

antagonistic relationship between market and social justice, capitalism and 

democracy, has a significant political dimension. In an earlier period, Karl Polanyi 

argued that the destruction caused by the dis-embedding of the market in a liberal 

capitalist society would lead to a reaction, or ‘second movement’, of re-embedding 

through social policies and the re-regulation of markets.24 It is not only that as a 

matter of proper sociological understanding, the economy is embedded in society 

rather than the other way round; it is also that politically, since democracy poses a 

threat to the logic and interests of capital, the ruling class will attempt to curtail the 

economic goals of the majority, and by political and even constitutional means if 

necessary.25 The perception that capitalism and the individualist ethos of classical 

liberalism pose a serious threat to the robust ‘public’ on which democracy itself 

depends, as John Dewey argued in a different historical and political context, has a 

similarly vintage pedigree. Dewey of course thought that democracy must 

permeate all of society, becoming industrial and not merely civil and political; in 

order to allay the corrupting effects of capitalism and the inequalities it results in, a 

vibrant public is essential.26  

                                                      

24 K. Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston, Beacon Press, 
2001). 
25 ‘Inside and outside England, from Macaulay to Mises, from Spencer to Sumner,’ wrote Karl Polanyi in 
The Great Transformation, first published in 1944, ‘there was not a militant liberal who did not express his 
conviction that popular democracy was a danger to capitalism’. Ibid 234. 
26 See e.g. J. Dewey, The Public and Its Problems (New York, Henry Holt, 1927). By focusing on the 
potential of science and experimentation, Dewey arguable neglected the politics necessary to contain 
capitalism, see M. Wilkinson, ‘Dewey’s Democracy without Politics: The Failures of Liberalism and 
Frustrations of Experimentalism’ (2012) Contemporary Pragmatism 117 - 142.  



 

 

Michael A. Wilkinson                               Politicising Europe’s Justice Deficit: Some Preliminaries  

 

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And the framing of the justice deficit is political in a second and more basic 

sense that calls into question any statist assumptions. Although the ‘Keynesian-

Westphalian’ co-evolution of a monopoly of legitimate violence and a community 

of fate is difficult to envisage beyond the state, it would be an error to think and 

act as if the state were therefore self-contained or insulated for the purposes of 

negotiating the tension between capitalism and democracy, market and social 

justice. Coercion, it must be remembered, can be and frequently is exercised 

between states and even through international institutions that lie over and above 

states. Both capitalism and democracy are linked to projects of state- and 

institution-building, both at home and abroad, most obviously in the guise of 

foreign and imperial adventures, however civilising their missions in the eyes of 

those who pursued them. Neither coercion nor community, in other words, is 

autonomous and independent from political action, internally or in external 

relations.  

The framework of assumptions that implied a hermetically sealed national 

container was of course long ago shattered historically by exposing the links 

between political freedom, capital accumulation, and imperialism. As Arendt 

powerfully argues in ‘The Origins of Totalitarianism’, political emancipation of the 

bourgeoisie in the late nineteenth century was prompted by their desire for 

economic expansion, which in turn necessitated expanding the territorial logics of 

power beyond the nation-state.27 In addition, the assumed role of the bourgeois 

state and state-sponsored ideology in protecting the security of the individual – 

determining its openness or closure towards immigration, fixing policies of asylum 

and assimilation, formulating citizenship tests as well as labour and welfare policies 

towards foreigners – demonstrates that the internal framework within which 

democracy and capital ‘slug it out’ is not fixed in regard to the outside world, but 

contingent on politics and political action.  

Restricting the domain of justice to relations within the state has the effect of 

legitimising the ‘de facto’ inequality that exists between states, as if any inequality 

beyond the state was apolitical, natural, or beyond the domain of human action. 

Just as it is a mistake, in other words, to see the state only as an enabler of social 

justice or as an impartial arbitrator of the balance between markets and peoples, it 

is also a mistake to view it as an arbitrary but necessarily neutralised pivot of the 

balance of justice.  

All of which is to say that the logics of market and social justice do not exist 

in a vacuum, and so to Streeck’s account must be added the political context of 

their interaction. As a glance at the historical record confirms, to the longevity of 

the functional disequilibrium must be added its evolution through distinct stages 

of economic and political development, including, particularly in the second half 

of the twentieth century in which the project of European integration is born, 

                                                      

27 H. Arendt, The Origins of Totalitarianism (Harcourt, (1951) 1968) 123 - 157. More recently it has also been 
argued that it is predominantly Western imperialism and intrusion into the Arab world, rather than 
religious fundamentalism that is the root cause of the alienation felt by Muslims in Europe today. See P. 
Anderson, ‘Portents of Eurabia’ The National, 2009.  



 

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significant institutional and ideological elements which constrain the logics of 

capitalism and democracy, and in a way that is not captured by the bare categories 

of coercion and community.  

 

 

 

3. HISTORICISING A JUSTICE DEFICIT: THE ROLE OF 
IDEOLOGY 

 

In the postwar period in Western Europe, as classical economic models based on 

notions of unfettered competition and free markets are replaced with those of late, 

or ‘organised’, capitalism based on intervention with market mechanisms, 

tolerance of oligopoly and the generation and sustenance of large public sectors, 

government intervention in recalibrating the relationship between democracy and 

capitalism comes to be taken for granted. This continues to be the case to this day, 

even if rhetorically and opportunistically dismissed or derided by the cheerleaders 

of neo-liberalism, which does not hesitate to embrace the authoritarian state 

apparatus if necessary. Whether to ensure the smooth functioning of a market 

economy, assuage the financial markets, or on more radical accounts, continue the 

process of accumulation through dispossession, ensuring the continuation of the 

inequalities on which capitalism depends, governmental interference on both sides 

of the justice balance is ubiquitous.28  

But not only is the economy increasingly and explicitly entangled with 

institutions of political democracy and state bureaucracy; struggles over market 

and social justice also assume more complex political and ideological forms, in 

part due to the reaction to the series of crises that engulfed Europe and elsewhere 

in the first half of the twentieth century, in the forms of fascism and Soviet 

communism. Social, political and economic struggles in the post-war State are 

tempered by what has been called ‘constrained democracy’ and ‘constrained 

capitalism’, collective commitments – often of a constitutional nature - which 

encourage or impose limits on the democratic and capitalist logics, in order for the 

society to maintain stability and avoid the extremism that potentially occurs as 

society relapses – or appears to be in the process of relapsing – into crisis. 29 

First, in Jan-Werner Müller’s narrative of post-war democracy in Europe, 

distrust of popular sovereignty and even parliamentary sovereignty was ubiquitous 

in the aftermath of World War II, with the goal of constraining democratic 

majorities uppermost in the minds of political and bureaucratic elites, to prevent 

backsliding into the authoritarian extremism that devastated Europe in the first 

                                                      

28 See further, M. Wilkinson, ‘The Spectre of Authoritarian Liberalism: Reflections on the Constitutional 
Crisis of the European Union’ (2013) German Law Journal 527 - 560. 
29 See further, exploring the history in various national contexts, J-W. Müller, Contesting Democracy (Yale 
University Press, 2011).  



 

 

Michael A. Wilkinson                               Politicising Europe’s Justice Deficit: Some Preliminaries  

 

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half of the twentieth century.30 This distrust of politics, and fear of both Right and 

Left was manifested in concrete national institutions, with liberal constitutionalism 

and strong constitutional courts in particular developing across the region, most 

notably in the Federal Republic of Germany, but complemented with 

supranational institutions in the EU (or EEC as it then was) and the ECHR.31 Not 

only economically, but also institutionally, this was the hour of the ‘European 

rescue of the nation-state’, in Alan Milward’s well-known narrative.32  

But second, there was also, from the beginning of the post-war period until at 

least the mid-1970’s and the dawn of the neo-liberal revolution, a Keynesian 

consensus on the need to protect society from the excesses of capitalism and 

market justice.33 As well as laying the foundations of the social security or ‘welfare 

state’, this involved a bargain or social contract between capital and labour, a post-

war ‘class compromise’, obtained by a set of mediating institutions, which 

attempted to organise capitalism in such a way that would unite state and society.34 

This strengthening of the bonds between state and society, and between business 

and labour, was complemented by a commitment to the collective pursuit of 

broader social goals, including economic development, technical innovation, full 

employment, regional income distribution, and national security.35 ‘Socialism’, 

according to Müller, ‘had been implemented from above to constrain capitalism’ 

or as Tony Judt puts it, to save it.36 

Politically, it was the ‘moment of Christian Democracy’ and other elite-led 

and state-sponsored ideologies that pushed for the attainment and entrenchment 

of stability by curtailing political extremism and avoiding economic imbalances 

and excessive levels of socio-economic inequality.37 Constitutional and 

international commitments, internally and within the architecture of European 

legal regimes, increasingly ‘take things off the table’ for democratic contestation, at 

least if one wants to play within the rules. And of course the two dimensions of 

constraint – ideological and institutional – act most effectively in tandem in 

alleviating the perceived dangers of democratic and capitalist excesses. 

The project of European integration was considered a significant means to 

achieve this, internalising transnational externalities and softening the potential for 

                                                      

30 Ibid. And on the recent Euro crisis, see J-W. Müller, ‘Beyond Militant Democracy?’ 44 (2012) New Left 
Review 239. 
31 Müller: ‘European integration – this is crucial – was part and parcel of the new ‘constitutionalist ethos’, 
with its inbuilt distrust of popular sovereignty and the delegation of tasks to agencies that remained under 
the close supervision of national governments’,  ibid.  
32 A. Milward, The European Rescue of the Nation-State (London, Routledge, 1992).  
33 This was, Tony Judt, notes, an ‘unusually broad consensus’ on this, T. Judt, Ill Fares the Land (Penguin, 
2010) 47.  
34 See C. Bickerton, European Integration: From Nation-States to Member-States (Oxford University Press, 
2012). 
35 Ibid, 107.  
36 Ibid, 47. 
37 Müller describes Christian Democracy as ‘the most important ideological innovation of the post-war 
period, and one of the most significant of the European twentieth century as a whole’, in Contesting 
Democracy, above, note 29, at 130. The UK does not fit so neatly in this pattern; attaining relative 
stability and socio-economic equality in the postwar period but without constraining parliamentary 
supremacy.  



 

                          8/2014 

 

 12

sovereign violence. Along with the economic benefits thought to accrue from 

reducing obstacles to trade through the creation of a common market, this was the 

most convincing rationale for the state’s voluntary ‘containment’ and surrender of 

‘limited sovereign rights’.38  

European integration initially was considered a key aspect of the postwar 

constitutional settlement, a central feature in the narrative of the survival of the 

democratic sovereign state through constraining its dominant logics. Unlikely to 

transcend the nation-state or represent its evolution into a federal state writ large, 

because of the difficulty – let alone questionable desirability – of up-scaling the 

required combination of coercion and community, the EU would instead be an 

additional bulwark against the dangers of political and economic excesses.  

The process was complemented from its early stages by a strong and 

proactive juridical project to create a transnational rule of law, based on subjective, 

and predominantly economic, rights. A glance at the subject matter of the 

foundational and even revolutionary case of Costa v. ENEL – often lost in the 

mist of the supremacy doctrine it gave birth to – is revealing: an Italian law that 

sought to nationalise electricity production and distribution, based on the disputed 

payment of a 1, 925 Italian lire bill.39  

This ideological and institutional neutering of democratic and market logics 

was complemented by a ‘golden age’ of sustained economic growth, which 

facilitated the (temporary) satisfaction of the demands of both capital and labour, 

dramatically reducing levels of socio-economic inequality.40 The precise 

contribution made by European integration to the peace and prosperity of the 

‘Trente Glorieuses’ is contested. What is not contested is that from the mid-70’s, 

coinciding with an end to easy economic growth, the ‘long downturn’, equilibrium 

between capitalism and democracy has become more difficult to maintain.41   

                                                      

38 For recent accounts of the argument from containment within EU free movement law and citizenship, 
see F. De Witte, ‘Sex, Drugs & EU Law: The Recognition of Ethical and Moral Diversity in Europe’ 
(2013, forthcoming) 50 Common Market Law Review and ‘Union Citizenship and Constrained Democracy’ 
in A.P. Van der Mei and M. De Visser (eds) Twenty Years Treaty on European Union: Reflections from Maastricht 
(Intersentia, 2013).  
39 Case 6/64 Costa v ENEL [1964] ECR 585. The case was spearheaded by two members of the Italian 
bar actively pursuing the project of creating a European rule of law; see e.g. A. Vauchez, ‘The 
Transnational Politics of Judicialisation. Van Gend en Loos and the Making of EU Polity’ (2010) 
European Law Journal 1-28. 
40 According to Bickerton: ‘The decades of prosperity were tied to a particular model of both state and 
society and a specific understanding of the relationship between politics and economics’, above note 34, 
at 93.  
41 Financially, one solution was thought to be allowing high inflation, which can be seen as ‘an expression 
of anomie in a society which, for structural reasons, cannot agree on common criteria of social justice;’ a 
second then increasing credit: first government debt, then private credit, in both cases ‘pulling future 
resources into present consumption’. If this accumulation of private and public debt foregrounds the 
most recent financial crisis, one current response in the UK at least is, it appears, more of the same: 
another debt-fuelled and state-assisted housing bubble. See Streeck, ‘Crises of Democratic Capitalism’, 
above n 7, 23. So-called ‘privatised Keynesianism’, which is advanced as the immediate cause if not the 
ultimate root of the current economic crisis, is suggested by Streeck as a concession to the democratic 
pressures exerted by the people. This highlights an ambiguity in Streeck’s account. Historically ‘privatised 
Keynesianism’ was not, arguably, a response to democratic pressure but to capitalist pressure. For one 



 

 

Michael A. Wilkinson                               Politicising Europe’s Justice Deficit: Some Preliminaries  

 

 13

The forces of market justice have, in this period of neo-liberal ascendancy, 

come out firmly on top, creating a further critical imbalance in the relation 

between capitalism and democracy. The current period of crisis demonstrates once 

again how the state is called on dramatically to intervene, but, in doing so with 

austerity for the poor and primarily in order to regain international 

competitiveness under pressures of market justice, is doing so with scant regard 

for socio-economic equality and considerations of distributive or social justice. 

What kind of further democratic response, if any, this might lead to, remains to be 

seen.  

In the brief aftermath of the collapse of the Soviet Union, the idea of the co-

originality and co-evolution of democracy and capitalism took hold of our 

collective imagination, a marriage that signified, on some accounts, no less than 

the end of history itself.42 Contributing to this eschatological sentiment in Europe 

was a narrative that paired wider integration with waves of democratisation and 

market liberalisation, as first Spain, Portugal and Greece emerge from political 

dictatorship to join the common market and later the countries of the former 

Soviet bloc apply for membership of the EU. And the ‘Copenhagen criteria’ for 

membership of the EU in the 1990’s made the pairing of democracy, the rule of 

law and human rights with a functioning market economy both formal and explicit 

conditions.43  

Any sense of having reached the plateau of liberal democratic 

constitutionalism was not to last long, however, as, well before the recent financial 

crisis, the EU began to face a more inward looking constitutional crisis of 

legitimacy, expressed both in popular rejection of the Constitutional Treaty and in 

juridical resistance to the constitutional jurisprudence of the European Court of 

Justice.44 Both global and European narratives of a comfortable reconciliation of 

democracy and capitalism have now, in any case, been exposed if not completely 

exploded. Not least the role of the state has increasingly resumed centre stage, 

even if neo-liberalism has proved surprisingly ideologically resilient, as well as 

economically and politically powerful.45  

                                                                                                                                       

thing, it occurred most intensely in places where the working class was being weakened – with the neo-
liberal war on the unions waged by Reagan and Thatcher. Does Streeck’s argument imply that without 
democratic pressures, capitalism would exist in a natural equilibrium? That markets would be self-
correcting if left to themselves, unperturbed by democratic pressure? For a different account of the 
golden age and subsequent ‘long downturn’ see R. Brenner, The Economics of Global Turbulence (London, 
Verso, 2005), emphasising the significance of the global unevenness and competition between national 
capitalisms. 
42 The reference of course is to Francis Fukuyama, The End of History and the Last Man. For more nuanced 
accounts, rejecting both the internal relation and internal tension between capitalism and democracy, see 
e.g. P. Wagner, The Crisis of Democratic Capitalism: Reflections on Political and Economic Modernity in 
Europe, LEQS Paper 44/2011 and before the recent crisis, A. Touraine, What is Democracy? (Westview 
Press, 1997).  
43 Laid down at the June 1993 European Council meeting in Copenhagen.  
44 The strongest resistance in terms of influence has been from the German Constitutional Court. See e.g. 
D. Grimm, ‘Defending Sovereign Statehood Against Transforming the Union into a State’ (2009) 
European Constitutional Law Review 353. 
45 See C. Crouch, The Strange Non-Death of Neo-Liberalism (London, Polity Press, 2011). 



 

                          8/2014 

 

 14

Obituaries for an end of history thesis already deconsecrated by its own 

author are unnecessary, which is not to say we have definitively moved beyond its 

paradigms. But however resilient the modern liberal state, the crises and 

contradictions of democratic capitalism have undoubtedly escaped its confines, 

becoming Europeanised and globalised, most apparently in the latest economic 

crises in the Eurozone, which of course were set in motion by events on the other 

side of the Atlantic.46 So too the site of struggle between market justice and social 

justice has now shifted, at least partially, beyond the state, being played out 

between electorates and financial institutions, governments and international 

organisations.  

 

 

 

4. FRAMING THE EU’S SOCIAL JUSTICE DEFICIT 
 

Through the evolution of political and legal institutions in the EU, both coercive 

and consensual aspects of political rule would emerge beyond the state, even if 

only in incipient form. But this gradual outsourcing of political authority and of 

constitutional checks and balances, rather than protecting the Keynesian-

Westphalian ‘nation-state’, now threatens rather to transform it, into a post-

Westphalian ‘member state’.47  

There are many aspects to the erosion of the national political frame and the 

demise of its social-democratic Keynesian compromise; the precise role that the 

EU has played in this narrative is far from straightforward. And to be sure, our 

specific judgment may vary depending on which of the varieties of capitalism from 

amongst the various Member States we take as our exemplar.48 Even on a single 

state, the effects of European integration may vary over time, as laws and 

institutions at national and supranational level themselves evolve. 

The purpose of Streeck’s account was, however, to suggest that, despite the 

possibility and actuality of regional variation in terms of the precise political 

construction of and response to the capitalist economy, there is a singular logic 

and ethic of capitalism and market justice, which not only can be abstracted from 

its varieties, but is integral to its institutional and ideational form.   

And, however persuasive the varieties of capitalism literature in comparative 

context, there is a strong current of opinion, in states as varied in their political 

and constitutional economies as the UK and Germany,49 which holds that 

                                                      

46 For an account of this single globalised crisis of financial capitalism see e.g. M. Aglietta, ‘European 
Vortex’ (2012) 75 New Left Review 15. 
47 See Bickerton, note 34 above, chapter 2. I borrow the term Keynesian-Westphalian from Nancy Fraser. 
48 See e.g. P. Hall and D. Soskice (eds.) Varieties of Capitalism. The Institutional Foundations of Comparative 
Advantage (Oxford, Oxford University Press, 2001).  
49 In the UK context, see D. Nicol, The Constitutional Protection of Capitalism (Oxford, Hart, 2010); in the 
German context see F. Scharpf, ‘The Asymmetry of European Integration: or Why Europe Can’t Have a 
Social Market Economy’ (2010) 8 Socio-Economic Review 211. 



 

 

Michael A. Wilkinson                               Politicising Europe’s Justice Deficit: Some Preliminaries  

 

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European integration has been a significant factor in the erosion and even overall 

demise of the ‘Keynesian-Westphalian’ compromise due to the structural 

asymmetries that the EU creates and maintains.50  

 Institutions and practices of social justice, both public and private, at the 

national level, if not found disproportionate in their effects on trade, may become 

a burden of comparative disadvantage due to the effects of competition and free 

movement norms. The juridification of the default rules of free circulation of the 

factors of production in the EU, combined with the political difficulties of re-

regulation or even Treaty amendment (in areas where the EU lacks competence), 

particularly in light of the consensus politics with which it operates, favours and 

even entrenches a firmly, if not unambiguously, neo-liberalising trajectory.51  

Idiosyncratic features of supranational integration not only combine to 

prevent cogent political-democratic response to the social dysfunctionality of the 

market but also deter the creation of possibilities for such response: a central bank 

unable to buy government debt and bound to the single objective of ensuring 

price stability, the relative lack of labour mobility due to cultural and linguistic 

heterogeneity, unprecedented wage repression in the largest economic bloc, an 

eclectic mix of economic development and bureaucracies in different phases of 

modernisation, and above all the (real or perceived) absence of a supranational 

community of fate.52  

The structural asymmetries imposed by Europe’s peculiar brand of federalism 

tips any balance of justice overwhelmingly in favour of market and against social 

justice, pushing the dynamic disequilibrium of democratic capitalism to tipping 

point. There are simply insufficient channels of contestation to generate the social 

and political legitimacy for any Polanyian double movement at the supranational 

level that might correct these biases and imbalances.  

Although there is a powerful and growing body of academic opinion to say 

that political union must now ultimately ensue, either to deal with the German 

question or to resolve the Greek problem,53 the EU emphatically has not itself 

followed in the footsteps of the statist model or developed a fully-fledged 

transnational social contract. Arenas of distributional conflict are becoming ever 

more remote from domestic politics, but the imperative to upscale the democratic 

political framework for the negotiation and re-negotiation of justice claims has 

been resisted.54 The political response to redistributive questions in Europe – to 

                                                      

50 It is Fritz Scharpf, above all, who has conceptualised and described in institutional detail the social and 
economic imbalances caused by Europe’s constitutional asymmetry. See recently, on the role of 
European law in this process, F. Scharpf, ‘The Asymmetry of European Integration: or Why Europe 
Can’t Have a Social Market Economy’ (2010) 8 Socio-Economic Review 211. And for a broader examination 
of this asymmetry in the terms of constitutional theory, see N. Walker, ‘The Place of European Law’, in J. 
Weiler and G. DeBurca (eds) The Worlds of European Constitutionalism (Cambridge, CUP, 2011).  
51 See Scharpf’s exhaustive analysis of the asymmetry between market and social rules, law and politics in 
the EU, ibid.  
52 See P. Anderson, ‘After the Event’ (2012) 73 New Left Review 49 – 61. 
53 See e.g. U. Beck, A German Europe (Cambridge, Polity Press, 2013). 
54 Streeck, ‘Crises of Democratic Capitalism’, n 7 above, 27. 



 

                          8/2014 

 

 16

questions of social justice not only within but also between states – has occurred, 

if at all, sotto voce, behind the backs of the electorates. 

If taking market logic and market justice beyond the state has been celebrated 

in Europe in an era of ordo- and then neo-liberalism, taking democracy and social 

justice beyond the state has proven theoretically and practically problematic, to say 

the least.55 Democracy, it is only too clear, has not become fully supra-nationalised 

in response to the freedom of capital and other factors of production to roam 

beyond borders. And if the democratic deficit in the EU was already notorious, it 

has now become critical, with constraints placed on the core of national 

democratic sovereignty in the ESM and ‘Fiscal Compact’.56  

And yet, on the dominant ordo-liberal account, the asymmetry of European 

integration was entirely justified: the supposed virtues of inter-state competition 

and the perceived economic benefits of the free circulation of goods, workers, and 

capital better attained without political interference.57 Founded on ‘guarantees of 

economic freedom’, the EU’s legitimacy - according to a leading figure in the 

ordo-liberal school - is quite ‘independent’ of its ‘democratic and socio-political 

future.’58 From a market liberal perspective, moreover, the absence of a ‘demos’ 

represented a solution rather than a problem: our reduction to ‘mere’ individuals, 

‘consumers’ or ‘entrepreneurs’, is motivated by perfect economic rationality. 

An economic constitution celebrates the absence of a ‘demos’ because 

political redistribution of wealth, whether unjustified or merely irrational, is less 

likely to be feasible in the absence of community or social solidarity, a ‘we-feeling’ 

amongst the members of a polity.59 Ordo-liberalism, in tune with its neo-liberal 

cousin, ‘has more confidence in the economic constitution than in democracy.’60  

This divorce of political authority from control over economic resources leaves 

market justice to triumph over its rival.  

But it is now becoming clear that not only would the EU fail to develop the 

political capacity to deal with perceived injustice across its borders, it would also 

impede the existing states from reconciling their own tensions and the writing and 

re-negotiation of their own social contracts: 

 

                                                      

55 For an account of the political traits of neo-liberalism, see D. Harvey, A Brief History of Neo-Liberalism 
(Oxford: Oxford University Press, 2007). 
56 ‘Treaty Establishing the European Stability Mechanism’ (ESM), July 11, 2011, O.J. (L 91) and the 
‘Treaty on Stability, Coordination and Governance in the Economic and Monetary Union’ (‘Fiscal 
Compact’) http://www.european-council.europa.eu/eurozone-governance/treaty-on-stability?lang=en, 
last accessed on 16 January 2014. For analysis, See e.g. See M. Dawson and F. De Witte, ‘Constitutional 
Balance in the EU after the Euro-Crisis’ (2013) 76 Modern Law Review 817. 
57 The ordo-liberal account of the EU is presented by Ernst-Joachim Mestmacker, see e.g. ‘European 
Touchstones of Dominion and Law’ (2007) The Ordo Yearbook of Economic and Social Order 4. On regulatory 
competition, see A. Sayde, ‘One Law, Two Competitions: An Enquiry into the Contradictions of Free 
Movement Law’, (2011) Cambridge Yearbook of European Legal Studies, 365-413. 
58 Mestmacker, ibid, 7. 
59 Hayek favoured a form of interstate federalism to assuage the perceived threat of redistribution. For 
discussion, see A. Somek, ‘The Social Question in a Transnational Context’, LEQS Papers, 39/2011. 
60 J. Habermas, The Crisis of the European Union: A Response (London, Polity Press, 2012) 129. 



 

 

Michael A. Wilkinson                               Politicising Europe’s Justice Deficit: Some Preliminaries  

 

 17

the construction of Europe as an economic and monetary union, without 

corresponding political and fiscal integration, disabled the protective 

capacities of member-states without creating broader, European-wide 

equivalents to take up the slack. Today, the evidence is all around us: Greece 

is reduced to a protectorate, Spain, Portugal and Ireland are ruled from 

Brussels, and central bankers set limits to domestic policy even in Germany 

and France. The upshot is that the project of social protection can no longer 

be envisioned in the national frame.61  

 

Regarding the national level, there is a strong case to say that whatever was left of 

the Nordic model of welfare capitalism after the neo-liberal onslaught of the late 

1990’s has been further undermined by the rulings of the court of justice in its 

recent case-law on the free movement of establishment and freedom to provide 

services.62 Far from the European rescue of the nation-state, the EU now seems to 

be in the process of contributing to its transformation.  

The sense of a serious imbalance between capitalism and democracy, caused or 

exacerbated at least in part by Europe’s constitutional asymmetry, is becoming 

increasingly pervasive. Jürgen Habermas, an otherwise avid if not stubborn 

supporter of the project of integration, now notes that ‘political management’, 

‘uncoupled’ from the democratic pressures and dynamics ‘of a mobilised political 

public sphere and civil society’, is deprived of the motivational strength to resist 

capitalism, unable ‘to contain and redirect’ its ‘profit-oriented imperatives’ into 

‘socially compatible channels’. As result, governing authorities increasingly ‘yield’ 

to the neo-liberal pattern of politics:  

 

A technocracy without democratic roots would not have the motivation to 

accord sufficient weight to the demands of the electorate for a just 

distribution of income and property, for status security, public services, and 

collective goods when these conflicted with the systemic demands for 

competitiveness and economic growth.63  

 

Market discipline had been supposed to perform the function of stabilising 

economic systems, to compensate for the merely soft, symbolic sanctions against 

fiscal excess in the Stability and Growth Pact (violated almost immediately by 

France and Germany)64 and for the ‘no bail-out’ rule enshrined in the Treaty 

(Article 125 TFEU) that prevented, in theory, transnational sharing of the burdens 

                                                      

61 N. Fraser, ‘Triple Movement’ (2013) New Left Review 126. 
62 For recent analysis, see e.g. E. Christodoulidis, ‘The European Court of Justice and “Total Market” 
Thinking’ (2013) 14 German Law Journal 2006.  
63 J. Habermas, ‘Democracy, Solidarity and the European Crisis’, lecture delivered at Leuven, in April 
2013, a full transcript is accessible at: 
http://www.kuleuven.be/communicatie/evenementen/evenementen/jurgen-habermas/en/democracy-
solidarity-and-the-european-crisis, last accessed on 16 January 2014. 
64 A violation side-stepped by the Court of Justice in Case C-27/04 Commission v Council. 



 

                          8/2014 

 

 18

of any economic crisis, until the Court rules otherwise in its Pringle decision.65 But 

soft measures are now to be substituted for the harder rules contained in the ESM 

and ‘Fiscal Compact’.66 Although, strictly speaking, these take place outside the 

EU acquis, they threaten the constitutional balance of the European Union, by 

calling into question the most cherished principles of integration – democracy, 

Member State equality, the balance of powers, the ‘community method’, and even 

respect for the rule of law itself.67  

If the EU was destined to become a civilised, ‘non-imperial Empire’,68 then 

the financial crisis and responses to it are threatening to tear away this thin veneer 

of respectability.  Disorder, in the present critical conjuncture has spilled over 

from the economic to the political domain, upsetting not only the ‘system 

integration’, but also the ‘social integration’ of contemporary societies, as the life-

world becomes increasingly precarious, with austerity programs, in the southern 

Europe in particular, wrecking lives.  

Not only is political democracy in practice suspended in debtor countries, but 

the economic constitution itself is bypassed, because of the imperatives of the 

financial markets and the concerns of creditor states.69 And where that is the case, 

as, arguably, it already is in countries like Greece, Ireland and Portugal, ‘street riots 

and popular insurrection may be the last remaining mode of political expression 

for those devoid of market power’.70 This tampering with an already precarious 

equilibrium threatens to explode – if not already detonated – into outright revolt 

in Europe. If there was already a democratic deficit in Europe, there is now a crisis 

of democracy.  

And because of the power – real or imagined – of the troika and even the 

credit rating agencies themselves, citizens increasingly perceive their governments, 

‘not as their agents, but as those of other states or of international organisations’,71 

who utilise the messages sent by the financial markets to control and cajole if not 

to coerce their populations. The financial markets, we are increasingly informed, 

will simply not tolerate certain political outcomes, or more often, political 

indecision, giving new lease of life to the sentiment that ‘time is money’.72 And 

international organisations, such as the IMF and the European Union, are 

‘immeasurably more insulated from electoral pressure than was the traditional 

                                                      

65 Case C-370/12, Pringle v Ireland. For analysis, see A. Menendez, ‘The Existential Crisis of the European 
Union’ (2013) German Law Journal 453 - 526. 
66 Note 51 above.  
67 See M. Dawson and F. De Witte, above note 56. 
68 In the words of Jose Manuel Barroso, see http://www.brusselsjournal.com/node/2244, last accessed 
on 16 January 2014. 
69 See C. Joerges, ‘Europe’s Economic Constitution in Crisis and the Emergence of a New Constitutional 
Constellation’, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2179595#, last accessed 
on 16 January 2014.  
70 Streeck, ‘Crises of Democratic Capitalism’, n 7 above, 28. 
71 Streeck, ‘Crises of Democratic Capitalism’, n 7 above, 26. 
72 Accredited of course by Max Weber to Benjamin Franklin.  



 

 

Michael A. Wilkinson                               Politicising Europe’s Justice Deficit: Some Preliminaries  

 

 19

nation-state’.73 Whereas in the post-war constitutional settlement this insulation 

(or democratic constraint) was considered one of the EU’s supposed strengths – 

and in the ordo-liberal account, a real virtue – it is now increasingly being 

perceived as a disruptive and dangerous vice.  

As a result, extreme nationalist political parties prosper, with promises, 

however unrealistic, to regain the harnesses of power and smash the mythical 

power of fate, personified now by faceless bureaucrats and troika representatives. 

The need to ‘re-embed’ the market economy has been exploited by reactionary 

movements of right-wing populism rather than transnational movements of pan-

European solidarity. The promise of regaining collective autonomy, which only 

appears institutionally possible at the national level, however illusory in practice, is 

a far from unattractive platform from which to gain popular electoral support. 74 

In the wake of the financial crisis, we have witnessed the results of capitalism 

acting ‘more like itself’, with capital movement and market justice having 

increasingly strained at the leash of democratic and territorial controls. And in the 

absence of a European demos and democratically legitimate European institutions, 

it is not markets themselves but strong states that appear to take up the slack, 

however reluctantly, to ensure the survival of transnational capitalism and the 

market economy. In this way, the financial crisis has not only revealed the fragility 

of the constitutional principles of the EU; it has also exposed a horizontal 

asymmetry between larger and smaller member states, or economically stronger 

and economically weaker states, that was previously concealed.  

So although strong statehood is lacking at the supranational level, there is at 

least one contender at the national level, which in conjunction with technocratic 

governance structures in the EU has been able to call the shots: the Federal 

Republic of Germany.75 In the absence of political channels of contestation, 

dictats and coercive measures prevail. And they appear to emanate from one 

source in particular. As Perry Anderson puts it, 

 

In the European simulacrum of federalism, there could be no ‘transfer union’ 

along American lines. Once crisis struck, cohesion in the Eurozone could 

only come, not from social expenditure, but political dictation—the 

enforcement by Germany, at the head of a bloc of smaller northern states, of 

draconian austerity programmes, unthinkable for its own citizens, on the 

southern periphery, no longer able to recover competitivity by devaluation.76 

 

Coercive elements of rule are becoming increasingly prominent and exposed, from 

the centralised supranational authority and its representatives in the Commission 

                                                      

73 Streeck, ‘Crisis of Democratic Capitalism’ n 7, above, 26. 
74 This is most evident in Greece with the rise of Golden Dawn. Greece is perhaps unique in also giving 
rise to a major new left-wing and anti-austerity party, Syriza, which, although maintaining support for the 
Eurozone was considered a threat by the liberal establishment, particularly in Germany.  
75 See e.g. Beck, note 53 above.  
76 Anderson, note 52 above. 



 

                          8/2014 

 

 20

and European Central Bank, to international organisations such as the IMF, 77 as 

well as among the Member States themselves. Real economic power discrepancies 

are even becoming translated into political norms, as is the case of the voting 

weights in the European Stability Mechanism.78  

European integration not only adds an additional layer of complexity to the 

relationship between democracy and capitalism; it also makes the core tension 

more visible. It exposes the justice deficit in broad daylight and the coercion 

necessary to sustain the background conditions of transnational economic order. 

Preventing conflict from becoming critical and destructive of the project of the 

Euro must, we are told, be achieved at all costs.  

The post-war narratives of ‘constrained democracy’ and ‘constrained 

capitalism’ therefore appear to be coming to an abrupt end in the current phase of 

European integration. And, in a conjuncture of exquisite irony, it seems that the 

constitutional model of the European Union is to be forcefully remade due to the 

political and economic strength of the one country that integration was supposed 

above all to contain. Mann’s nightmarish vision of a ‘German Europe’ rather than 

a ‘European Germany’ is in danger of becoming a reality.79  

 

 

 

5. POLITICISING JUSTICE DEFICITS 
 

There are many attempts to justify the institutional responses to the financial 

crisis, to suggest, for example, that they are necessary temporarily, in the short-

term, to ensure the stability of the integration process, or at least its currency, in 

the long run. There have been attempts to justify the constitutional asymmetries 

and justice deficits in the EU. Some also deny that European integration creates, 

contributes to or maintains such deficits at all. But it is becoming increasingly 

difficult to persuade persons, and indeed entire peoples, that integration merely 

expands the pie for all, that there are not real transnational redistributive 

implications of membership in the EU or even that they remain in collective 

control of their fates. And many influential commentators now argue that Europe 

will need to engage in huge and explicit redistributive programs and therefore 

develop into full political union in order to deal with the social and economic 

effects of the recent financial crises.80  

But in the absence of the requisite transnational solidarity to support this 

democratically, openly and voluntarily, the emergency ‘rescue operation’ is being 

                                                      

77 For analysis of the institutionalisation of this ‘troika’, see Menendez, note 65 above.  
78 See De Witte and Dawson, note 56 above.  
79 See Beck, note 53 above.   
80 See e.g. Offe, ‘Europe Entrapped: Does the EU Have the Political Capacity to Overcome its Current 
Crisis’ (2013) European Law Journal 595 – 611. 



 

 

Michael A. Wilkinson                               Politicising Europe’s Justice Deficit: Some Preliminaries  

 

 21

conducted in an ‘undemocratic, depoliticized, and technocratic mode’.81 This 

raises the danger of new forms of authoritarianism emerging, both nationally and 

transnationally.82 A recalibration of the ‘moral calculus’ of integration – of 

transnational solidarity – will not however to come top-down from elites, but, if at 

all, from the recognition by the peoples of Europe of the injustice of those 

suffering from the austerity measures being imposed upon them. 83 

The justice deficit, however, is frequently de-politicised by naturalising the 

ascendency of market justice.  There is, for example, a strong tendency to perceive 

the initial movement of capitalist logic and market justice in quasi-naturalistic 

terms, as an unstoppable social and evolutionary force, which democratic politics 

can do nothing more than attempt to tame or civilise in response. This perception 

of the capitalist economy as natural and autonomous is most explicit and 

developed in systems theory and can be traced back through to Weber’s 

rationalisation thesis of modernity, and even beyond, to the natural law 

understanding of the economy that substitutes the state for civil society, in the 

work of thinkers such as Adam Smith and Thomas Paine. De-politicisation of the 

public sphere finds support in elite theories of democracy and systems theory, 

because, in common with the classical doctrines of political economy, they appeal 

to an evolutionary narrative of social reproduction, whether normatively or merely 

descriptively. 84 

Common to these varied positions is the viewpoint that the economic is not 

only autonomous; it is foundational for the polity and for political development.85 

It is a view that even (sympathetic) critics of Weber such as Jürgen Habermas have 

come to adopt.86 Since the fall of the Berlin wall and the collapse of the Soviet 

Union, he claims, it has become ‘impossible’ to break free from the world of 

capitalism; ‘the only remaining option is to civilise and tame the capitalist dynamic 

from within’.87 And the transformation of law and politics in the process of 

European integration, Habermas argues, is bound up with this capitalist dynamics, 

framed by a ‘functionally driven opening’ of integration and inclusion followed by 

a ‘socially integrative closure’, or re-embedding of the market.88 

 There is a broader point here. Escape from democratic politics signalled by 

the practice and discourse of ordo- and neo-liberalism is not new; its sentiment is 

as old as philosophy itself. Liberalism’s attempt to escape from politics through 

                                                      

81 Offe, ibid. 
82 See Wilkinson, above note 28.  
83 The term ‘moral calculus’ is Offe’s, see note 80 above. 
84 For Weber, rationalisation is an aspect of our loss of freedom in modernity, see, for discussion, e.g. K. 
Breen, ‘Under Weber’s Shadow: Modernity, Subjectivity and Politics’ in Habermas, Arendt and MacIntrye 
(Ashgate, 2012). On Smith and Paine, see e.g. M. Loughlin, Foundations of Public Law (Oxford, OUP, 2010) 
347. Teubner’s work is an important exception here, providing a critique of the naturalisation of 
economic rationality from within systems theory; see note 18 above. 
85 Foucault identifies this reversal as central to understanding neo and ordo-liberalism. See M. Foucault, 
The Birth of Bio-Politics: Lectures at the College de France (London: Palgrave MacMillan, 2010). 
86 Cf. Breen, note 84 above. 
87 Habermas note 60 above, 106.   
88 ibid, 113. 



 

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economics, as Hannah Arendt argued, is not a departure, but a continuation of the 

philosophical tradition that begins with Plato and ends with Marx.89 Once a 

substitute for action is found – which is traditionally the role of the ‘absolute’, in 

modern times Sieyes’ nation or Jefferson’s self-evident truths – politics becomes 

mere administrative execution, analogous to the private economic decisions of the 

household. The loss of the political comes with the identification of a source of 

authority ‘beyond the sphere of power’ and, whether the law of nature or the 

commands of God, not itself ‘man-made’. The source of authority apparently 

‘beyond the sphere of power’ and therefore beyond the sphere of democratic 

politics is now the market itself and global capital markets in particular, their 

authority anonymised in the form of barely comprehensible and virtually 

unaccountable credit rating agencies.  

The suggestion of the ‘naturalness’ of any existing order and the inequalities 

in which it results is ideologically potent, particularly when it is accompanied by an 

ethos of competition and an individualism that might be attractive for other moral 

or cultural reasons.90 The high water-mark of this reification of the capitalist 

economic logic is the neo-liberal insistence that ‘there is no alternative’ (TINA), 

propagated so forcefully by Margaret Thatcher that it was swallowed whole not 

only by her Conservative but by her ‘Third Way’ successors, in the UK and 

elsewhere.91  

Can the justice deficit be politicised or re-politicised? This, it is argued, is a 

condition for it to be democratised, however democratisation might then be 

institutionally imagined and implemented. Although this will not of course 

convince those who deny there is a social justice deficit at all in the EU, it remains, 

if correct, a contribution to an account of why social (or market) justice deficits are 

in large measure political artefacts, whether or not they exist in any particular place 

at any particular time.  

The struggle for social justice must be viewed not only in terms of the 

possibilities of reacting through existing channels to the (actual or perceived) 

injustice perpetuated by market capitalism but in terms of the creation of markets 

and of the channels of response to them in the first place. We can then consider in 

particular the way that politics facilitates or hinders a democratic response to that 

actual or perceived injustice as well as its complicity in the initial movements of 

market making and inducing the extension of market logic.  

                                                      

89 See H. Arendt, Between Past and Future (Penguin, 1968) 17 – 19. The point is made as strongly in The 
Human Condition (University of Chicago, 1958) 222: ‘Escape from the frailty of human affairs into the 
solidity of quiet and order,’ Arendt notes, ‘has in fact so much to recommend it that the greater part of 
political philosophy since Plato could easily be interpreted as various attempts to find theoretical 
foundations and practical ways for an escape from politics altogether’. 
90 On the supposed natural quality of the economic order in neo-liberalism, see e.g. M. Foucault, The Birth 
of Bio-Politics: Lectures at the College de France (London: Palgrave MacMillan, 2010), O. Parker, Cosmopolitan 
Government in Europe (London: Routledge, 2012). On how neo-liberalism splits the left, by co-opting 
liberal social causes, see Harvey, above note 55.  
91 Thatcher, when asked to name her greatest legacy, famously responds, ‘Tony Blair’.  



 

 

Michael A. Wilkinson                               Politicising Europe’s Justice Deficit: Some Preliminaries  

 

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Politicisation of the justice deficit points at how capitalist market logic 

depends upon the state and on political action not only for its maintenance and 

‘taming’, but also for its creation and re-creation. This can occur both through 

action and inaction. It suggests that the state is at once both problem and solution 

to the crises of democratic capitalism; both poison and cure.  

According to a radical philosophical tradition, the state apparatus is not only 

responsible for an initial, often violent, movement of original or ‘primitive’ 

accumulation that sets up the economic and social conditions for market 

capitalism (Marx’s ‘doubly free labourer’), but also constantly or periodically re-

constitutes these conditions through  ‘accumulation by dispossession’.92 But others 

– including those less radical – have identified political action, coercion and 

violence, whether through internal corruption, war or in the form of global 

imperialism (‘political capitalism’), as central to at least some types and certain 

periods of market formation and continuing in aspects of modern capitalism.93  

Violence, coercion and imperialism, however, are only contingently necessary 

to alter the balance of forces between democracy and capital. In the most recent 

era of neo-liberalism, to the conceptual dynamic of social and market justice must 

also be added political and legal changes made to and by the State which tip the 

balance between democracy and capitalism in favour of capital, such as the 

hollowing out of state powers, the turn from government to governance, whole-

sale privatisation programs, the removal of issues from the democratic agenda and 

into the regulatory arena of experts and technocrats and constitutionalisation – 

and therefore judicialisation – of economic rules, particularly through international 

institutions.94 There is a strong affinity between privatisation and regulation on the 

one hand and technocratic, expert government on the other, and of course in the 

EU this was captured by Majone’s notion of the ‘regulatory state’, although it is 

also an aspect of the ideology of ‘constrained democracy’ that we explored 

above.95  

There was, and is, nothing inevitable about the turn to the regulatory state; it 

is the expression of political choices and planned structures. Placing the political 

and its most potent manifestation, the modern state, at the root of the political 

economy of capitalism (whether classical, late or ‘post-modern’) and the seemingly 

inexorable spread of market logic, highlights the contingency of the market as an 

economic and normative form, however powerfully articulated and cultivated 

institutionally and ideologically. As Joseph Weiler acknowledged with respect to 

the process of market-building as the centerpiece of European integration: 

                                                      

92 See D. Harvey, The New Imperialism (Oxford, OUP, 2003); E. Meiksins Wood, Empire of Capital 
(London, Verso, 2003). For an earlier account, see Arendt, note 27 above, 148, drawing on Rosa 
Luxemburg.  
93 Such as Max Weber himself, with his category of ‘political capitalism’. See e.g. R. Swedberg, Max Weber 
and the Idea of Economic Sociology (1998) 46 - 53. 
94 See e.g. S. Gill, Power and Resistance in the New World Order (London and New York, Macmillan-Palgrave, 
2003), D. Nicol, The Constitutional Protection of Capitalism (Oxford, Hart, 2010), W. Bonefeld, ‘Neo-Liberal 
Europe and the transformation of democracy’ in Nousios, Overbeek and Tsolakis (eds) Globalisation and 
European Integration (London, Routledge, 2011).  
95 See G. Majone, Regulating Europe (London, Routledge, 1996). 



 

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A “single European market” is a concept which still has the power to stir, but it 

is also a “single European market”. It is not simply a technocratic programme 

to remove the remaining obstacles to the free movement of all factors of 

production. It is at the same time a highly politicised choice of ethos, ideology 

and political culture: the culture of “the market”[…] premised on the 

assumption of formal equality of individuals […] Crucially, this not only 

accentuates the pressure for uniformity, but also manifests a social (and hence 

ideological) choice which prizes market efficiency and European-wide 

neutrality of competition above other competing values.96 

 

Of course de-politicisation was in some sense a deliberate choice in the designs of 

the various European communities, which favoured consensual over conflictual 

evolution, at least the consensus of powerful political and economic elites.97  The 

transnational economy would be based on legal guarantees, technical regulations 

and even ‘soft laws’ such as the Stability and Growth Pact, rather than centralised 

political controls subject to democratic contestation. One might say, adopting 

Weiler’s influential narrative, that it was based on this combination of law and 

technocracy precisely because political controls remained with the Member States, 

reluctant to surrender them, particularly in the early stages of integration.98  

But once the political nature of transnational market logics is acknowledged, 

then alternatives to the fundamentals of the current set-up – and not merely 

tinkering around the edges – might be explored as a genuine possibility. The crisis 

is, in any case, already exposing the weakness of the rule of law in the face of 

political response to economic emergency, as developments in the grey zone of 

the Union method evolve, although it is too early yet to say precisely what this 

portends.99   

 

 

 

6. DEMOCRATISING THE JUSTICE DEFICIT? 
 

The ‘Keynesian-Westphalian’ negotiation of market and social justice through a 

combination of ‘constrained capitalism’ and ‘constrained democracy’ can no 

longer be taken for granted, if not already consigned to the history books.100 We 

have sketched the role that European integration has played in this negotiation 

                                                      

96 J. Weiler, ‘The Transformation of Europe’ (1991) Yale Law Journal 2477.  
97 For an account, see M. Dani, ‘Rehabilitating Social Conflicts in European Public Law’ (2012) 18 
European Law Journal 621 – 643.  
98 Ibid. 
99 See A. Menendez, note 65 above, for the long view.  
100 Müller himself thinks we have recently turned a corner and that the EU has changed qualitatively, no 
longer able to lock in states to democratic and social commitments, see ‘Beyond Militant Democracy’ 
(2012) 73 New Left Review 39.  



 

 

Michael A. Wilkinson                               Politicising Europe’s Justice Deficit: Some Preliminaries  

 

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and its transformation, although of course it is a story that touches on all the states 

of the democratic capitalist world.  

The effect of globalisation and Europeanisation has been ‘to destabilise’ the 

existing structures of political claims and to change the dynamics of market and 

social justice.101 With this destabilisation, even explosion, of the national frame, 

the assumption no longer holds that the modern territorial state is the exclusive 

site of justice claims. Neither is it clear that the citizens of such states are 

exclusively the relevant subjects of debates about justice. As Nancy Fraser argues, 

not just the ‘what’ but also the ‘who’ of justice must now be up for grabs.102 This 

is nowhere more evident than in contemporary Europe, where integration now 

directly raises the question of what, if anything, Germans owe Greeks (or vice 

versa), either as the result of a ‘moral calculus’ of integration or for the benefit of 

their own long-term self-interest.  

In addition to the usual first order questions of distribution and recognition 

within a particular community, second-order questions are increasingly being 

raised about justice in the EU. Not only the substance of justice, but also the 

‘frame’ is increasingly in dispute, and demands are increasingly being made for a 

post-Westphalian theory of justice.103  

And yet, in recalling the priority of politics we cannot ignore the question of 

the political, or le politique, which, fundamentally, defines the parameters of who is 

to be counted amongst the members of the relevant community, and, in its most 

infamous formulation, between who is friend and enemy.104 The point is not 

merely to highlight the priority of action and contingency over decisionism and 

necessity, because, as Fraser herself acknowledges, the political ‘furnishes the stage 

on which struggles over distribution and recognition are played out’. She 

continues: 

 

Establishing criteria of social belonging, and thus determining who counts as 

a member, the political dimension of justice specifies the reach of those other 

dimensions: it tells us who is included in, and who excluded from, the circle 

of those entitled to a just distribution and reciprocal recognition.105  

 

The framing of ‘the political’ determines not only who can make justice claims, by 

virtue of establishing who is a member of the relevant community, but also how 

such claims are to be made, judged and acted upon, and of course the precise 

procedures are significant because they not only exclude certain voices, but also 

                                                      

101 See N. Fraser, ‘Reframing Justice in a Globalizing World’ (2005) New Left Review 69. 
102 Ibid. 
103 Fraser, note 101 above, at 73.  
104 C. Schmitt, The Concept of the Political (University of Chicago Press, 1927), 2007. For an account of 
European constitutionalism which gives priority to the political, but in more dynamic and reflexive terms, 
see M. Wilkinson, ‘Political Constitutionalism and the European Union’ (2013) 76 Modern Law Review 191 
– 222.   
105 Fraser note 101 above, 75. 



 

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privilege some interests over others in stipulating the rules and conditions of 

access.   

Political justice is therefore concerned chiefly with the idea and the practice 

of representation, where misrepresentation would point to the distinctively political 

obstacles to equality of representation, in addition to in justice presented by 

maldistribution and misrecognition within a polity.  

Misrepresentation can occur at the first ordinary, domestic level of the 

democratic process, where, for example, the rules and internal constituencies of 

the electoral system itself are drawn. This is far from straightforward in a 

compound polity such as the EU, which has to balance the basic principle of the 

equality of persons with the more complex principle of the equality of states, 

because the constitutional identity of the component parts matters.106 A balance is 

sought through the electoral system of the European Parliament, with its system 

of degressive proportionality, engagement with national parliaments, and in 

conjunction with forms of indirect representation through the European 

Commission and Council. Although this balance is difficult in any federal or 

compound polity it has special resonance in the EU because of the continuing 

sovereignty claims of the constituent parts, as so forcefully articulated, however 

disingenuously, by the German constitutional court in the Lisbon decision, which 

insists on maintaining the  constitutional power to guarantee its own social state.107  

Misrepresentation can also occur at a second level, which concerns the basic 

boundary-setting aspect of ‘the political’. Here misrepresentation takes the form of 

mis-framing, where the injustice is not insufficient representation but wrongful 

exclusion from any kind of political representation. Although the process of 

economic globalisation exposes this mis-framing because it reveals our inter-

connectedness in a more comprehensive and immediate manner, it must be 

remembered, with Arendt, that the Keynesian – Westphalian frame itself mis-

framed in significant respects, with political emancipation tied in with legacies of 

capitalist expansion and imperialism.108  

If political obstacles to full and fair representation existed within the 

Keynesian – Westphalian frame of the territorial state, European integration - and 

economic globalisation more generally - exposes the injustice of the frame itself, 

because those affected by it are marginalised from its political decision-making 

centres in spite of the legal and political equality they are formally attributed. The 

enhanced possibility of political gerrymandering comes at the expense of the 

marginalised and powerless, who can only, if at all, channel their claims through 

relatively ineffective political channels. The allocation of votes in the European 

Stability Mechanism, weighted by capital contributions, is a good example of the 

                                                      

106 See e.g. C. Lord and J. Pollak, ‘Unequal but Democratic? Equality According to Karlsruhe’ (2013) 20 
European Journal of Public Policy 190 – 205.  
107 For a critique of the German court’s understanding of political equality see Lord and Pollak, ibid.  
108 See note 27 above. 



 

 

Michael A. Wilkinson                               Politicising Europe’s Justice Deficit: Some Preliminaries  

 

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normalisation of the conflation of economic and political power, which has 

potentially dramatic effects on the principle of political representation.   

Europeanisation and globalisation are politicising the normal Westphalian 

frame of justice by making a dimension of injustice more visible. A special kind of 

meta-injustice is exposed, where some are wrongly excluded from consideration, 

‘denied the chance to press first-order claims’ within a community.109 

 

Metapolitical misrepresentation arises when states and transnational elites 

monopolize the activity of frame-setting, denying voice to those who may be 

harmed in the process, and blocking creation of democratic arenas where the 

latter’s claims can be vetted and redressed. The effect is to exclude the 

overwhelming majority of people from participation in the meta-discourses 

that determine the authoritative division of political space.110  

 

In the EU, those who consider their voices silenced by processes beyond their 

individual and even collective control will take to the streets instead, as we have 

seen from Athens to Madrid and from Lisbon to Paris. But, one might ask, in the 

new light of the redistributive implications of economic and monetary union, why 

is it that the political code is still predominantly nation versus nation? What 

explains the absence or weakness of transnational social movements in 

comparison to the power of transnational capital? Is it a straightforward failure of 

elites? 

To begin to answer this, a third element of social struggle must be explored, 

working alongside economic and social justice, in order to appreciate the full 

complexity of the justice deficit: ‘emancipation’. Really existing social struggles do 

not neatly fit the contours of a Polanyian double movement or of Streeck’s 

rebalancing of the relationship between market and social justice. Instead they 

have exposed problems not only with marketisation and the spread of market logic 

but also with the socially protective responses to it that, in the name of social 

justice, have depended on an exclusionary rhetoric of communitarianism, 

homogeneity and popular consensus.111 Struggles for emancipation are now cross-

cultural, transnational, plural and heterogeneous; from feminism to the anti-war 

movements, Occupy to trade unionism, environmentalism to the indignados, the 

voices of social justice are diverse and dispersed.112  

A politics of representation must ‘aim to democratize the process of frame-

setting’,113 to contest the way in which boundaries themselves are drawn. This is 

                                                      

109 Fraser, note 101 above, 77. 
110 Fraser note 101 above, 85. 
111 On the exclusion and sovereign violence of the social contract model See Parker, above n 90.  
112 See the report on subterranean politics. In the eyes of the Habermas-Derrida initiative, it was the anti-
war movements coordinated on 15 February against the invasion of Iraq that gave birth to a European 
public sphere. See ‘February 15, Or What Binds Europeans Together’ reprinted in (2003) 10 Constellations 
291 – 297. 
113 Fraser, note 101 above, 80. 



 

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no easy task.114 But what it suggests is that to the tension between the logics of 

democracy and capitalism must be added the logic of the state, and its external and 

internal manner of setting the scene for this ceaseless antagonism of interests and 

values, including the shaping of transnational political spaces such as the EU. 

Streeck’s dilemma of market and social justice must be substituted for a trilemma: 

of market, social and democratic justice. Only then might the destabilisation of the 

national frame signal democracy’s graduation rather than its retirement.  

 
 

                                                      

114 This is an area, however, where democratic experimentalism has presented certain insights about the 
need to keep open, contingent and provisional the form and content of the democratic community.