November 30
2020

On Brexit: Law, Justices and Injustices

by Tawhida Ahmed and Elaine Fahey (eds)

review by

Menelaos Markakis

There is no shortage of great literature on Brexit and its various implications for our legal systems, politics, the economies of the EU and the UK, and so on. The theme of this edited collection sets it apart, focusing as it does on ‘how Brexit is intertwined with ideas of justices and injustices’ (page 2). In the editors’ own words, to ‘frame Brexit arguably entails seeking an objective understanding of its meaning or its core. We argue that methodologies of justice provide a “thick” substantive core for this exercise’ (pages 20-21). Contributors are asked: ‘whose justice is affected by Brexit? What justice is affected by Brexit? What does a just society look like?’ (page 272).

It is rightly noted by the editors that, ‘Justice discourses have consistently pervaded the UK’s participation in the EU as to whether the UK’s membership of the EU provided forms of justice or injustice to UK and other citizens, or for different policy areas’ (page 2). They are quick to note that ‘justice is a highly contested subject’, hence ‘whether Brexit is just or unjust (produces justices or injustices) depends on one’s perspective on justice’ (page 3). These justices/injustices range across a number of different subjects, such as access to material benefits or social goods, the fairness of Brexit in human rights terms (a topic close to Dr Ahmed’s heart), issues of gender equality, environmental protection, and so on (pages 3-6). In the words of the editors, ‘never has a question of international organisation law divided a society so much as this UK-EU “Exit” decision’ (page 6). In their opinion, to ‘frame its potential impact or effects, at the time of writing, is highly problematic because largely hypothetical and mooted claims remain a constant’ (page 6). The neutral approach taken by the editors is fairly noticeable throughout the volume and is a breath of fresh air in a room filled with strong opinions, but the latter point could indeed be contested, at least insofar as the impact of Brexit on the UK economy (fn 1) or on human rights is concerned (fn 2).

The book has a strong focus on the methodological challenges of Brexit analysis, as the seasoned reader would expect from any book co-edited by Professor Elaine Fahey. The editors rightly underline ‘the multidisciplinary nature of the Brexit analysis required arising from the tremendous legal, economic, political, socio-cultural, environmental and other related issues at stake’, as well as the methodological issues involved in legal analyses of Brexit (page 7). The challenges the editors and contributors of this volume have brought upon themselves do not stop there. ‘A broader methodological challenge is to engage with how sovereignty has been a dominant feature of the Brexit debate and remarkably central to justice issues’ (page 8). Moreover, Brexit ‘poses many questions as to “rational state” behaviour in the international legal order and also in particular issues of compliance with that order’ (page 12). This further links to issues of convergence and divergence, and indeed disintegration, in the global legal order (fn 3). A further challenge relates to framing the actors of Brexit. The influence of the editors’ (and contributors’) earlier work is vividly demonstrated in identifying this challenge (fn 4). In their own words, ‘Reflecting upon the subjects and objects of Brexit may lead us to deduce a wider and more complex overlapping set of entities with interests and stakes in Brexit’ (page 15).

The chapters are short and to the point, with limited references to literature. After all, the point is not to engage in exhaustive legal analysis (which may be outdated in a few months from now), but instead to focus on themes of broader significance. The book does an excellent job in doing just that. Accordingly, part I of the book is titled ‘Whose and whither justice after Brexit?’. David Seymour writes on ‘Lexit and the mystification of political economy’. The core of the argument is that ‘Lexit’s critique of the EU is rooted in a pre-critical understanding of political economy’ which, ‘…in turn, leaves Lexit open to the accusation of mystification’ (page 23). The consequence of this is, according to the author, that  Lexit’s stated remedies for what it sees as the failings of the EU reproduce, rather than solve, the problems its proponents have identified (page 23). Damjan Kukovec’s (thought-)provoking essay is on ‘The legal profession’s responsibility for Brexit’. He argues that ‘lawyers have an ethical duty to analyse the distributional consequences of legal change and to offer analytical clarity about the state of law and society’ (page 39) (fn 5). His chapter outlines ‘how the legal profession collectively failed in discharging this ethical duty in the process of Brexit and how it importantly contributed to it’ (page 39). Paul O’Connell writes, perhaps equally provocatively, on ‘The constitutional architecture of injustice’. He argues that ‘the Brexit vote was a reaction against forms of structural injustice which the EU systematically produces, and which it has enshrined into its core constitutional architecture’ (page 55) (fn 6). In his opinion, ‘the actually existing EU, notwithstanding the highest ideals that animate many of its supporters, provides a constitutional framework which reproduces and legitimates stark injustices between and within the member states of the EU’, such that ‘in principle the Brexit rupture opens up space to pursue more expansive projects of justice in the UK and across Europe’ (pages 55-56). Though the EU is far from perfect, the conclusion drawn by the author may be overly optimistic. After all, it should not be forgotten that, at its most basic:

‘The EU is a place to manage the interdependence of States in Europe. This mission is underpinned by a democratic understanding, in the sense that the EU restrains States from taking decisions that impose costs on nationals of other States who have no political voice in the first State’s decision-making process, as well as a more crude sense that Europe operating collectively is able to exert influence and power that exceeds the sum of its parts.’ (fn 7)

The focus in Part II of the book shifts to Brexit and governance. Joelle Grogan writes on ‘the uncertain future of rights in the UK following the Brexit process’ (page 65). Her chapter ‘outlines those rights which will be lost; those which are critically at risk; those which are vulnerable; and considers whether there are alternative means of protecting rights’ (page 65). Alex Powell looks at ‘“The will of the people”: the UK constitution, (parliamentary sovereignty), and Brexit’. Sionaidh Douglas-Scott writes on ‘Brexit and the siren-alike allure of sovereignty’, criticising much of the discourse and false promises in the run-up to Brexit. She rightly notes that, ‘The UK is set to leave the EU – an action that will have a very profound impact on many parties, causing great injustice … on the basis of an incoherent notion of sovereignty’ (page 96).

Part III of the book looks at Citizens and vulnerable persons. Adrienne Yong writes on ‘Human rights protection as justice in post-Brexit Britain: a case study of deportation’. Polly Ruth Polak looks at ‘Brexit and the balance of free movement and social justice’. Sabrina Germain asks: ‘Will there be justice in healthcare post-Brexit?’ For her part, Ermioni Xanthopoulou looks at ‘Legal uncertainty, distrust and injustice in post-Brexit asylum cooperation’. The vital importance of these lines of research is self-evident. The ongoing COVID-19 crisis has rendered them all the more important.

Finally, Part IV of the book looks at Territory and globalisation. The contributions are as diverse as they are interesting. Luke McDonagh writes on ‘The constitutional implications of Brexit for Northern Ireland’. Nikos Skoutaris writes on ‘Brexit and transitional justice: Brexit as a challenge to peacebuilding’, focusing on Northern Ireland and the UK Sovereign Base Areas in Cyprus. Samo Bardutzky writes on ‘Brexit, freedom, and justice: the difficulties of political constitutionalism with the supranational/global’. His twin intention is ‘to show that … “Brexit” … can be ascribed to political constitutionalism as the dominant political and constitutional doctrine in the UK’ and ‘to critique the ability of political constitutionalism to accommodate projects such as the EU, using Brexit as the example’ (page 222). In his opinion, ‘legal constitutionalism has an important advantage over political constitutionalism in the context of participation in supranational and global projects’ (page 222). For his part, David Collins writes on ‘Brexit and international trade: the aspiration of Global Britain’. The arguments put forward in this chapter will be rather surprising to most readers, but they do serve to show that this edited volume is home to a range of diverse ideas, from all sides of the scholarly and political spectra. Last but not least, Joseph Corkin writes on ‘The liberal order: holed below the waterline or a ship that we can rebuild at sea?’. Chapter 18 (by Dr Ahmed and Professor Fahey) concludes.

In conclusion, this volume will be of interest to everyone working on (or simply interested in) Brexit and especially to those looking at the issue of Brexit and justice from a philosophical perspective. Its theme and methodological approach set it apart from earlier Brexit work. It brings together some of the most interesting voices in legal scholarship and – in stark contrast to many Brexit works or projects – it does not exclude EU27 voices. If you have as much trouble as the current author does in managing your downtime during the coronavirus outbreak, this book makes for a very interesting read that will keep you occupied for a few days and above all inspire you and trigger your curiosity.

 

Dr Menelaos Markakis is an Assistant Professor at University Rotterdam and Stipendiary Lecturer in EU Law at Worcester College, Oxford. 

 

(fn 1) See generally F. Kainer and R. Repasi (eds), Trade Relations after Brexit (Nomos/Hart Publishing 2019).

(fn 2) See further C. Barnard, ‘So Long, Farewell, Auf Wiedersehen, Adieu: Brexit and the Charter of Fundamental Rights’ (2019) 82 Modern Law Review 350; M. Markakis, ‘Brexit and the EU Charter of Fundamental Rights’ (2019) Public Law 82.

(fn 3) Amongst the copious literature, see particularly E. Fahey (ed), Framing Convergence with the Global Legal Order: The EU and the World (forthcoming, Hart Publishing 2020); and the forthcoming special issue on ‘The Era of Disintegration’ in the Journal of International Economic Law, edited by F. Violi and F. Montanaro.

(fn 4) See further S. Bardutzky and E. Fahey (eds), Framing the Subjects and Objects of Contemporary EU Law (Edward Elgar Publishing, 2017).

(fn 5) On a related subject, see K. Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (Princeton University Press, 2018).

(fn 6) As far as the arguments made by the author about the Eurozone are concerned, see M. Markakis, Accountability in the Economic and Monetary Union: Foundations, Policy, and Governance (OUP, 2020).

(fn 7) Stephen Weatherill, Law and Values in the European Union (OUP, 2016) 20.

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