Justice and justification in Europe's "Area of Freedom, Security and Justice"

The paper explores the connection between the notions of justice and justification, and explains why their full comprehension enhances the legitimacy of the EU's 'Area of Freedom, Security and Justice' (AFSJ) project. The paper argues that the notion of justice, despite its contested nature, offers a helpful lens for viewing the AFSJ as part of the EU constitutional landscape. Nevertheless, we need to go further when investigating its potential as a theoretical device for navigating the future of AFSJ law. This paper contends that we need to analyse the notion of justice in the AFSJ by starting from the position of security as domination. Only by doing so, can we understand the capabilities of the EU for realizing justice and freedom in a largely security driven site. In an attempt to marry these abstract claims with the reality of security regulation in contemporary European law, and as part of the process for establishing democratic credentials within the AFSJ, the paper sets out to link the larger question of justice to one of justification and ultimately that of proportionality in AFSJ law. This discussion paper is part of a series of contributions to the conference "Towards a Grammar of Justice in EU Law', which took place on 6-7 November 2014 at VU University Amsterdam, sponsored by ACCESS EUROPE Amsterdam, VU Centre for European Legal Studies and the Dutch Research Council VENI grant.