The ECJ has ruled on a number of cases concerning the social policy arrangements of the Member States of the EU in relation to free movement. All EU Member States reimburse medical expenses that occur in another Member State as long as prior authorisation is given for foreign medical treatment or if the medical treatment is urgent. However, two cases, Decker[3] and Kohll[4], were considered exceptions to the rule by the Court. In the former, a Luxembourg national who purchased a pair of spectacles in Belgium was denied reimbursement for them on the grounds that he purchased them without prior authorisation from his sickness fund. The latter concerned another Luxembourg national whose daughter was refused treatment by a German orthodontist since the same could be provided in Luxembourg and the treatment was not considered to be urgent. Keeping in mind that barriers of this kind may be imposed in order not to harm the financial balance of the social security systems, the Court ruled that these two particular cases did not pose such a threat to national social security systems. Thus the principle of free movement prevailed.

The ECJ has also played a key role in defining the notion of EU citizenship before it was mentioned in the EC Treaty.[5] It has done this through extending the principle of non-discrimination based on nationality, which was originally intended for the protection of workers and freedom to provide services. The Court has extended this principle to include the benefits of social security in relation to free movement and also to include those who are not the providers of services, but recipients of services. This was done for the first time in the case of Ian William Cowan v. Tresor Public[6]. This case concerned a British citizen, Mr. Cowan, who had been attacked at the exit of a metro station in Paris. Mr. Cowan had not gone to France as a worker or as a provider of services and since his attackers were not identified he was not eligible to receive compensation for his physical injury. Nevertheless, the Court decided that even foreign recipients of services are entitled to the same treatment as the Member State’s nationals.

However, the ECJ has not only extended “circle of beneficiaries as to include other EC nationals but has also broadened the ambit of national social rights to non-EC nationals and thereby moved beyond European citizenship.”[7] This refers to migrant workers whose native countries have association agreements with the Community, but even here the ECJ has extended the scope of the agreements. In Henia Babahenini v. Belgium[8], the wife of a retired Algerian worker was denied a disability allowance in Belgium, as she was not a migrant worker herself. The Court rules that the agreement between the Community and Algeria did also include the members of the family of the migrant worker.

The above examples of the ECJ’s case law serve to depict its socially activist role. Moreover, it is clear that many of the socio-economic rights included in the Charter of Fundamental Rights of the EU have already been established in the case law of the ECJ. It is stipulated in Article 52 (2) of the Charter that rights based on EC Treaties or the TEU are subject to the conditions and limits outlined in those Treaties. Thus, the Charter cannot either widen or reduce the scope of those rights. Nevertheless, in fulfilling its primary duty of making rights more visible to EU citizens, the Charter undoubtedly signals an advance in the public awareness of those rights that have already been established in the case law of the ECJ.

Allan Rosas distinguishes between three elements in the external human rights policies of the EU: the normative, political and assistance and support elements.[1] The normative element refers to the inclusion of human rights clauses in agreements with third countries relating to assistance and trade. The political element surfaces when the EU takes measures to stop human rights violations, such as sanctions against third countries. The third elements of assistance and support consists of the EU’s efforts to directly promote human rights in third countries and provide assistance, including financial, to civil society, nongovernmental organizations, and public institutions.

In the Regulation adopted by the Council of the European Union in April 1999, it is stipulated in Article 3 (b) that one of the aims of the EU’s foreign policy is the promotion and protection of economic, social and cultural rights in third countries. The Human Rights Regulations adopted in April 1999 are meant to provide the legal basis for the technical and financial assistance activities of the EU and the appropriate procedures of this assistance. The document also stresses the indivisibility and interdependence of human rights and acknowledges that economic and social development is conducive for the protection of civil and political rights.[2] However, although the EU’s commitment to the universality, interdependence and indivisibility of human rights has been established, the practical side of this commitment shows much less attention directed to economic, social and cultural rights than civil and political rights in the Union’s external relations.

Economic, social and cultural rights are progressively being accorded more attention, but the fact remains that this attention is still very low. This is evident in a number of the EU’s policies. Very little attention is paid to the implementation of the specific economic, social and cultural rights by acceding countries, although the Commission has referred to the applicant countries’ implementation of the ESC and ICESCR in Agenda 2000.[3] The funding for projects relating to economic, social and cultural rights constitutes a small part of the overall budget for human rights in third countries. Moreover, “investment in social development has been accorded a low priority in most EU aid, even though increased is now being given to health and education.”[4]

There is a need to balance the funding allocated to civil and political rights and that allocated to economic social and cultural rights. This is evident in the fact that these rights are crucial for the priority target groups identified by the EU, namely women, children and minorities. Also, the Commission’s own emphasis on the necessity for the respect of these rights in order to ensure democracy and the implementation of civil and political rights is thus not practically supported. In many Eastern European, Asian and South American countries, the economic crises which they continue to endure present a major obstacle to the enforcement of civil and political rights, the rule of law and a stable democracy.[5]

In its Annual Report on Human Rights of 2002, the EU clearly states its commitment to the equal implementation of all human rights and acknowledges the impact of their unequal realization, especially in terms of its effect on the vulnerable sectors of society. Moreover, in the report, the EU expresses support for the idea of an Optional Protocol enabling individual complaints to the ICSECR.

One of the most important aspects of the EU’s external human rights policy is the human rights clause inserted into bilateral trade agreements with third countries. This clause makes reference to the UDHR and stipulates that respect for human rights is an integral part of the agreement. The clause acknowledges both parties’ dedication to the respect for human rights and provides for the possibility of suspension of the agreement in case one of the parties violates it. Although the human rights clause appeared in agreements in the early 1990s, it has been systematically inserted in all trade and cooperation agreements since 1995.[6] More than 20 agreements of this kind have been signed and there are more than 30 agreements signed before 1995 which contain a human rights clause usually different from the model adopted in 1995. Since the human rights clause specifically refers to the UDHR, it therefore also expresses the indivisibility and interdependence of human rights. This is a very important aspect of the EU’s external human rights policy. Simple financial and technical aid would not ensure adequately that human rights are protected in the recipient country. With the possibility of suspension of trade agreements the EU adds the ‘stick’ component to the ‘carrot’ approach.

Besides the human rights clause in trade agreements, the EU has also made the respect for democracy, human rights and the rule of law a condition for receiving financial assistance. Thus the development policy of the EU has been closely linked to human rights and democracy. It was only recently that that a general development policy connected to human rights was developed, as before human rights considerations were placed ad hoc in the development policies.[7] The development policy and its relation to economic, social and cultural rights is slightly ambiguous due to the fact that it is unclear whether the development policy of the EU utilizes the entitlements approach or the basic needs approach.[8] It seems that most development projects which aim at reducing poverty and famine adopt a basic needs approach. However, especially in relation to the candidate countries, the EU is slowly adopting an entitlements approach to these rights by examining whether there are violations of specific economic, social and cultural rights. The EU has also moved closer to a rights based approach in its focus on health and education. Yet it is the case that “these projects still receive only a small portion of the overall budget, and they neglect the ‘rights’ component which entails an entitlement to demand the satisfaction of these rights.”[9]

On the European continent itself, the EU has made the respect for human rights, democracy and rule of law a condition for membership. The introduction of the Copenhagen criteria for membership, which are political, is proof of the transformation of the EU from an economic organization to a more integrated European polity. Moreover, what is significant for our present purposes is that in examining the extent to which the candidate countries comply with these criteria, the European Commission has also focused on economic, social and cultural rights. Yet, the reports of the Commission still retain a clear overemphasis on civil and political rights, judging by the amount of space dedicated to economic, social and cultural rights.[10]

In my opinion, the external human rights policy of the EU clearly reflects its internal policy. Although there has been significant progress in the rising level of awareness of economic, social and cultural rights, these rights are still clearly subordinated to civil and political rights. The EU’s external social policy will depend first and foremost on how much Europe develops its own social self. The EU Charter of Fundamental Rights might also serve the function of sending a clearer message to candidate countries of exactly what rights the European family upholds. The importance of the novelties in the Charter rises with consideration of the European Union’s eastward expansion. The Charter, besides bringing forth to the citizens of the EU the importance of fundamental rights, also extends this visibility to applicant countries. This can be seen as a noteworthy step forward in the spreading of awareness of the various rights by listing them in one concise Charter, which may be used as a guiding text by potential members.

As we have already mentioned before, the development of the EC had as its main goal the market integration of Europe. Yet, over the years it became evident that the EU is not a purely market oriented organization, but one concerned with the protection of human rights, democracy and the rule of law. In its case law, concerning the rules of market integration, the ECJ has usually resorted to a neo-liberal approach, which often had undesirable implications for national social policy. However, the ECJ has also ruled on a number of cases in favour of a certain social policy and thus justified some forms of restriction on trade. This has occurred when the regulation, which imposes certain restrictions on trade, is to be found in the majority of Member States. In this light, the rulings of the ECJ can be said to have focused more on the harmonization of national laws than on deregulation.[3] Although the ECJ has stressed that Community law does not strip the Member States of power to maintain their own social security systems, those Member States who had more protective social policies, which the majority of Member States did not subscribe to, were found to have regulations which do not conform to Community law and rules of market integration. Yet, even if the aim is identified in the judicial harmonization of national legislation, there have often been negative implications for national social rights. While the protective national social regulations have been tackled in order to eliminate restrictions on trade, there has not been an equally effective promotion of common social rights.[4] A set of common regulations on the EU level, it is believed, would also imply the primacy of social rights over the market.[5]

Therefore, whether social rights or market integration seem to be of primary importance depends on whether the integration of the market is positive or negative. Judicial review of national regulation constitutes negative integration in so far as that regulation is found to be inconsistent with Community law. Positive integration would constitute the creation of a common European social model. The creation of such a model in the EU context seems difficult keeping in mind differing national interests and ideologies.[6] It is the method of negative integration that is conducive to negative implications for national social rights, even though both methods ultimately result in the harmonization of national regulations.

Miguel Poiares Maduro rightly argues that the model of European citizenship is incomplete without the inclusion of fundamental social rights. By identifying the free movement provisions as fundamental freedoms the ECJ has affirmed the evident fact that the EU is primarily an economic organization where the citizenship model corresponds to that of a “market citizen”. What is lacking in the notion of European citizenship, “the idea of European social rights as European social entitlements arising from a criterion of distributive justice agreed among all citizens of the EU is rarely, if ever, discussed.”[7] However, the inclusion of social rights is a necessary step that must be made if European integration is to be complete. As Maduro claims, European citizenship cannot only be available to wealthy, elitist citizens who have the privilege to enjoy the free movement provisions. The creation of a European social model is perhaps also necessary as a legitimizing factor for European market integration and the EU itself.

When speaking of a lack of a common European social model, we should acknowledge that many EU “policies already have broad redistributive effects and what appears to be lacking is an overall criterion of distributive justice to assess and coordinate those redistributive effects.”[8] That absence of that overall criterion constitutes the lack of the legitimizing factor in EU policies which have unpredictable redistributive effects. It also constitutes the lack of the European social self, a prerequisite for a complete European citizenship. The EU’s majoritarian character and its policies can only be legitimized in the existence of a social contract on which they are based.

One of the defenders of European integration, Jürgen Habermas, holds that European integration offers a better chance of achieving social justice than can ever be possible within the confines of the nation-state. Habermas argues that the justifications which once pushed the process of European integration, namely the preventing of another war and controlling German power, are no longer satisfactory. What is needed is a new set of justifications if the project is to continue successfully. During the process of integration it is necessary to preserve the achievements of the European nation-state, of which the most positive Habermas considers to be the welfare state. The welfare state provides the individual citizen “with a set of social rights and also ensures that the capitalist economy operates in accordance with the public interest.”[9] He believes that this positive achievement of the nation-state, which is today threatened by effects of globalization, can be preserved in a Federal Europe while simultaneously rejecting the nation-state’s negative aspect of nationalism.

The social-democratic rights once protected within the confines of the nation-state are today threatened by the negative effects of globalization. In this scenario, the nation-state is no longer an adequate protector of these rights, the result of which is the impotence of ordinary citizens to be the creators of their own laws. Citizens must be able to control economic forces and this can, according to Habermas, be done only on the European level. Europe has already an established commitment to social, political and cultural inclusion and therefore the basis for a common set of values is not hard to find; it rests in social justice. In this commitment Europe is unique and quite different from the United States.[10] A Federal Europe can retain the idea of solidarity as opposed to purely neo-liberal values.

The view of Habermas depicts a positive version of European integration. Nevertheless, it too stresses the need for social justice on the EU level as a legitimizing factor for the project. Whether in the process of European integration economic freedom will be supplemented by adequate social rights will depend on the model adhered to and whether to the ideal of efficiency will be attached the ideal of distributive justice.[11] It also depends on how far the economic integration of Europe moves in the direction of political integration. The fact remains that a common social rights model for the EU seems difficult to agree on due to the fact that Member States have different views on whether such rights constitute fundamental rights all. The EU Charter of Fundamental Rights, through its inclusion of socio-economic rights acknowledges that the respect for these rights constitutes part of the European identity. However, the difficulty on agreement is evident in the subjecting of some of those rights to national laws and policies. Therefore, the debate on the future of a social Europe still largely rests in the ideological notions of European integration.

The guides for behaviour in society, as a need arising out of the association of human beings, are the outcome of a society’s experiences. These experiences are undoubtedly determined geographically and historically. However, “the thought and actions of its members will inform the basic postulates of a society and shape the principles . . . which govern the social order.”[1] At the forefront of a society’s laws, along with historical and geographical facts, lie the general ideas about justice and human nature.     These general ideas may be viewed as themselves geographically and historically influenced. Nevertheless, philosophical discourse has a history of its own and has always, directly or indirectly, directed legal thinking.[2] If one views the history of philosophy as a more or less linear progression, then it becomes apparent how different schools of thought gave rise to different theories of law and justice.

Let us take the example of Marxism. Marx’s dialectical materialism in a sense developed, whether positively or negatively, from Hegel’s dialectical idealism. This radical shift in ontology was followed by the change in the view of the relationship between the individual and the state. The teleological nature of Marxism, namely the withering away of the state and its laws as the eventual outcome of Communism, gave legitimacy to the system of laws established in Communist states.[3] The “dictatorship of the proletariat” was taken as the necessary transitional period in which the existing state power and its legal apparatus could be legitimately used against the bourgeoisie and proponents of capitalism.

The laws that were thus applied in Communist states had as their final aim the non-necessity of the state and its laws. This was not an aim that these states adopted due to only geographical and historical circumstances. The theory behind their system of laws relied on potentiality and was thus purely future-oriented. Furthermore, as a political system, Communism was adopted in countries such as China and Cuba, and not in Western Europe where it had been conceived.

Perhaps such an example of revolutionary law-making is not representative of the evolution of law in the majority of states. Yet, it illustrates the potential outcome of philosophical speculation concerning the problem of justice. The adoption of certain laws depends on a number of factors, which range from social facts to the influence of intellectual movements. This was the case with the revival of Roman law in Europe. While one of the reasons for its successful implementation had been that it suited more the interests of medieval emperors, it was also enforced by the Renaissance intellectual movement, as part of a larger revival of Roman and Greek culture.[4]

We can also look to the sources of law to see how law is shaped by many different factors apart from geography and history. The sources of law include on the one side custom and judicial precedents, but also legislation and codification. Some law systems give more importance to one over the other.[5] Custom, shaped by social facts, even when contradicting legislation, has the power to exert great influence on judicial decisions. This is evident in the fact that “the strength of a custom of justified vendetta still surfaces in jury trials in Corsica and Sicily.”[6] Nevertheless, custom is itself not solely shaped by experience but also entails ideas of morality. Thus, any “legal system does not need merely to . . . align particular doctrines with particular opinions or social practices    . . . . A legal system must be regarded as morally appropriate for and by the people it governs.”[7]

In the shaping of specific laws, factors such as geography may play the leading role. Examples of such instances are immigration laws. A country which is geographically proximate to regions from which influxes of illegal immigrants are frequent may find it necessary to impose stricter border control and visa regime. However, even such instances are closely tied to other factors such as the political and economic conditions of a given country.

The determining factors of a country’s laws actually exceed the limits of geography, history and abstract philosophical speculation. Countries change their laws due to a wide range of forces, both external and internal. A country such as Serbia is currently in the process of changing its legislation in order to harmonise its laws with those of the European Union. This is possible in the first place because geographically Serbia is part of the European continent and the people of this country see themselves as historically belonging it. However, due to the economic and political instability the road to European integration is seen by the leaders of this country as the only possible solution. Moreover, although the idea of peace, freedom and protection of human rights is overwhelmingly appealing to the population, it is also the case that the reason the country is changing its laws to reflect those of the European Union is because it is one of the conditions for membership.[8]

As a conclusion, the argument that geography and history are the determining forces of a country’s laws is found to be insufficient on a number of grounds. While the role of these two factors is evident in their primacy in the shaping of specific laws, even in such cases they cannot be separated from other factors such as economy, politics, religion, and constant attempts to better the legal system according to philosophical ideas of what the concept of justice entails.

The tension that Taylor exposes, and hopes to provide a solution for, is one between the politics of universalism and the politics of difference. How the tension between the two arises is best summed up in Taylor’s following statement:

With the politics of equal dignity, what is established is meant to be universally the same, an identical basket of rights and immunities; with the politics of difference, what we are asked to recognize is the unique identity of this individual or group, their distinctness from everyone else. The idea is that it is precisely this distinctness that has been ignored, glossed over, assimilated to a dominant or majority identity.[1]

The characteristic of the two opposing principles is that the second arises from the first. It was the move towards the equal status of all human beings as citizens that made the claims of the politics of difference possible in the first place.

It should be stressed that Taylor’s account does not contain any nostalgic elements, nor does it call for a restoration of the old world order. This is extremely important because the notion of equality is irreversible. There are people who glorify the times of the Athenian democracy as a ‘Golden Past’, where this kind of talk would not have made sense. The reason why it would not have made sense, however, is because of the lack of the politics of universalism. The only people who were considered citizens at all and who could partake in the political life were free male Athenians. Between them the need for a politics of difference did not arise because their identity was developed against the same background.

Today, however we have reached a stage of recognizing all human beings as possessing a certain potential due to which we ought to accord them the respect which they deserve. That potential is something all humans share and is the basis of sameness and equality. There is another vital need, however, which arises out of this principle and that is the need to be recognized for what one is. It is important to such an extent that “nonrecognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being.”[2] The need for the recognition of difference logically arises out of the politics of equality, but once it arises it becomes extremely hard to integrate the second into the first. Taylor realizes this fact and hopes to show why both principles are necessary to coexist in modern states, and why the second should not be rejected in order to preserve the first.

A serious problem arises when we examine the actual demands of the politics of difference and what they imply for a society. Namely, the basis of respect as developed in the politics of equality demands that we show a person due respect because of a certain potential that that person possesses. We are not demanded to show respect for the actual outcome of the person’s potential. The politics of difference, on the other hand, demands of us that we recognize cultures that have already evolved and realized their potential. The problem is that “the demand for equal recognition extends beyond an acknowledgment of the equal value of all humans potentially, and comes to include the equal value of what they have made of this potential in fact.”[3] In my opinion, this is a valid demand to some extent, since the characteristic of the so-called superior cultures has been theft and domination to such an extent that the underdevelopment of some cultures has been caused by their abuse.

It is at this point that we can confront the claim quoted in the title of this essay. Taylor does not agree with the above quote and seeks to show that our decision regarding this issue must not be an either/or one. The inevitable question that we must face is: on what grounds should we equally recognize evolved cultures and why should we allow for exceptions to certain cultures in order to help them remain in existence? Taylor’s answer to this seems to be that since certain cultures have provided a background for the identities of individuals over a long period of time they must have something worthy of respect. This can never be a final value judgment, however, but only an assumption with which one should start the study of another culture. The key here is the knowledge of other cultures and Gadamer’s notion of the ‘fusion of horizons’. In this way it might be possible to overcome the fact that there is no divine objective standard by which to judge evolved cultures. What we should do, according to Taylor, is “learn to move in a broader horizon, within which what we have formerly taken for granted as the background to valuation can be situated as one possibility alongside the different background of the formerly unfamiliar culture.”[4]

Taylor uses the example of Quebec to show how the two opposing principles can become reconciled and even complementary. Concerning the recognition of the distinctness of French-speaking citizens, Taylor suggests that it

need not violate liberal principles so long as restrictions – like requirements that Francophones and immigrants attend French-language schools, large businesses be run in French and commercial signs appear only in French – do not infringe on ‘the fundamental liberties’ of English-speaking citizens of Quebec.[5]

The notion of a universal potential has here been further developed to include securing the conditions for the outcome of that potential. This is undoubtedly related to the view that cultures, as much as individuals, are determined to an enormous extent by the conditions in which they had evolved. It is an extension of the view held by Bertrand Russell that “different conditions bring out different sides of our natures, which is why it is worth thinking about political arrangements at all.”[6]

The politics of universalism has established as necessary the equality of opportunity. What the politics of difference demands is equality of outcome. A liberal society cannot enforce substantive views about the ends of life. All it is permitted in establishing is a procedural commitment, whereby it commits itself to treating people with equal respect. The demands for the equality of outcome are that the collective goals of a certain culture should be treated with equal respect and even be helped to achieve by the broader community of which it is part. There should be exceptions made on the part of the legal system concerning the minority culture in order for that culture to preserve its collective goals. The following is a typical statement of objection to the demands for the equality of outcome:

Equality of outcome can thus be seen as an ‘unnatural’ result which can only be achieved by massive interference and the violation of any notion of a ‘fair’ race. Faster runners will have to be handicapped . . . In short, talent is penalised and an equal result is achieved by a process of ‘levelling downwards’.[7]

In my opinion, what Taylor argues for is that the situation need not necessarily be a “levelling downwards”, and it is to that extent that I agree with him. Taylor sees the difficulty in the demands for the equality of outcome and tries to find a middle path by claiming that what is necessary is that we start with the assumption that every culture is equally worthy of respect. What are conclusions will be cannot be established a priori.

Taylor does not outline the final solution to the problem, but his claim is a powerful one to the extent that it can set in motion the process of overcoming ethnocentricity. It is precisely ethnocentricity that prevents us from seeing the specific value of a different culture. We cannot demand, as Saul Bellow does, that the Zulus produce a Tolstoy.[8] Western feminists have no right to demand from Muslim women that they liberate themselves. There is no ground for demanding that and there certainly is no telling whether a Muslim woman feels more liberated in following the norms of her own tradition than the Western feminist does in rebelling against male domination. “We are always in danger of seeing our ways of acting and thinking as the only conceivable ones. That is exactly what ethnocentricity consists in. Understanding other societies ought to wrench us out of this; it ought to alter our self-understanding.”[9]

Taylor is in favour of a liberalism that sees the importance of cultural survival and is not reluctant to allow for exceptions in the principle of universalism. However, as quoted above, it must not allow for injustices to be done against the majority culture, yet still support the struggle for the preservation of a minority culture. Taylor does not by this mean that liberalism should be completely neutral concerning culture. It itself must be able to draw the line. In referring to the case of Salman Rushdie, Taylor argues that “there will be variations when it comes to applying the schedule of rights, but not where incitement to assassination is concerned.”[10]

Although he does not think that his solution is a simple one, Taylor is not convincing about his notion of liberalism having to draw the line at a certain place. We come again to the question that we started from. Namely, what is the standard by which we should judge where to draw the line? Not only is the line drawing relative to cultures, but also relative in time. Where we draw the line today concerning the punishment of criminals is certainly different from a hundred year ago.

I certainly find Taylor’s arguments worthy of discussion, but fail to see why he does not think it necessary to address the issue of power concerning these matters. The notion of the “fusion of horizons” seems to be taken rather simply. The conflict perspective still stands in the background of all we have discussed so far and the fact that it has not been addressed does not make it less important. Power manifests itself in all spheres of public life and the standard by which we will draw the line at the end of all discussions will be the standard as established by a dominant culture, which is not a permanent standard as realized by that culture, but vulnerable to the passing of time. The standard that determines the drawing of the line will change over time and by other cultures becoming more prominent. It could even be the case that certain resources will become so scarce that this discussion will go on from an altogether different point of view, however trivial and unimaginable that might sound to us now.

Two philosophers who looked at society without government or before government were Thomas Hobbes and John Locke, referring to this society as the state of nature. Hobbes describes man’s state of nature simply as constant war of each individual against another, a state in which morality and justice play no role whatsoever. A man will do anything in order to preserve his existence. John Locke also recognised this society as lacking political structure, but insisted that even in this kind of society there is a certain law of nature, which teaches mankind against harming one another and teaches equality and independence. The two opposing views led both philosophers to different conclusions on how a state should be organised. Hobbes held that the only solution was unconditional and unlimited power of the government, while Locke stressed the rule of the majority.

These two viewpoints seem to me to be essential in determining a route one will take in his beliefs about warfare. Taking a view that war is a state of nature would ultimately mean going against nature in trying to prevent wars. The position of the just war theory is somewhere between the extreme view that war is essential to man’s nature and the other extreme of refusing to use violence even in cases of self-defence as is the case with pacifism. The theory deals with recognising the conditions in which war would be morally necessary.

The just war theory started developing with the Christian Church and is today being used in international law. Central to this position is the idea that “the state’s use of violence in war is similar to its exercise of force in internal jurisdiction”.[1] Even thinkers such as Augustine held that just as a ruler may use force against wrongdoers inside the state, he may also use it against external wrongdoers. The theory is divided into the theory of jus ad bellum and jus ad bello. Jus ad bellum deals with what makes it right to wage war, while jus ad bello identifies the actions which are morally right to take during war. The conditions for jus ad bellum are that war may be waged only by a legitimate authority, it may be used only for a cause which is just, it must be the last choice, and there must be a very strong indication that it will be successful. The most important conditions of jus ad bello is that war must be fought in such a way as to do less harm and evil than would have happened if it had not been waged and that the killing of innocent people is not permitted. The major problem that arises from these conditions is the one concerning the distinction between who are the innocent people and who are not. From different ethical perspectives people make different conclusions on whether soldiers and officers are guilty or not.

The position of the just war theorists seems to stand on the same grounds as utilitarianism. The essence of utilitarianism is the greatest good for the greatest number. This necessarily implies not sparing a few for the welfare of thousands. This is actually one of the conditions of jus ad bello. To make sure that less evil will come about if the war is fought is a utilitarian approach. That the world really functions in such a way can be proven easily; all one has to do is analyse the wars in the last century and the policies of the allied forces. If one agrees with Hobbes then the just war theory appears to be the best of all possible ways in which mankind is able to “tame” its natural urges. However, this gives rise to another problem altogether. It is supposed that “utilitarianism is scrupulously impartial between persons, in the sense that no one is allowed to count for more or less than anyone else”.[2] How then does one decide to sacrifice a bodyguard for the life of a president who can also be replaced like the bodyguard? Presidents and bodyguards are replaced all the time.

It may be viewed that every war is in a way seen as just by the party that wages it. Even in cases of conquest, a nation will argue that the reason of its wanting to expand is to protect it from being conquered itself. So, who decides whether a war is just or not? When there is no balance of power in the world a nation can argue that the wars it fights are just, without a force of equal power being there to oppose it. According to Nietzsche, the whole world is a will to power. The powerful will do all they can to stay in power and the oppressed will ask for freedom and equal rights just in order to make the powerful less powerful and to become powerful themselves. He accepts that today’s society has a higher value of peace than of war, but he sees it as something anti-biological. “Life is a consequence of war, society itself a means to war.”[3] Are we then to believe in the just intentions of those in power when they wage wars on nations that demand more power?

The main contrasting current to the just war theory is pacifism, according to which all killing of human beings is intrinsically evil. This is a case of absolute pacifism, but all pacifist theories share in common the view that no violence can be justified, even in the case of self-defence. Pacifists believe that the rejection of violence is the path to creating a Utopia.

It has been mentioned that the just war theory assumes that the state is justified to fight against external wrongdoers in the same way as it is justified to enforce law and order inside it. If we accept the extreme pacifist view that all violence is wrong then that would mean rejecting the state, “for crime control is one of the main purposes of the state”.[4] This puts the just war theorists in a great advantage when supporting their arguments that pacifism cannot serve in international law just as much as it is useless in the law of the state. We do not even have to analyse the pacifist view of warfare, because war is simply not allowed under any circumstances. It can be compared to Kant’s categorical imperative. We cannot imagine a world, in which killing would be made a universal law, therefore we should not kill.

Pacifism relies on the assumption that if a certain number of individuals take the pacifist approach towards violence, that attitude would spread around and affect more and more people. This kind of global reaction in present day society is simply not achievable. The pacifist attitude cannot be made a global one due to the government systems in the world. There is not one single government in which everybody has equal power. Equal power should be distinguished from equal rights. The possibility of everybody having equal power would destroy the meaning of the word “power”. The word necessarily demands that there be somebody superior who possesses power and somebody inferior to recognise this power.

War itself can never be considered to be a moral act. The cause might reflect some morality from the utilitarian approach, but the act itself is never moral. However, cases always arise where morality plays a part in war. Since the birth of war itself, soldiers had some mutual agreements on how a war should be fought. This has to suggest at least some morality. The Ancient Greeks used to form truces for just long enough until each side has time to bury its dead. Every so often we hear of instances of soldiers killing people during the funerals of those already killed and we are shocked; we are much more shocked than when we hear about four soldiers being killed in the frontlines. This is because we have come to accept that the frontlines are an acceptable place to kill enemies, a place where one dies with honour. This proves that some aspects of morality can be applied to completely immoral acts.

It is a great risk to say that all means are legitimate in war and to say that the end justifies the means. The same question appears again on what ends are noble ends. It is highly probable that Hitler held his ultimate end to be a very noble one and did not actually like the means he had to take. Self-defence is assumed to be a noble end, but even here we come across a problem of what one sees as a good grounds to take up self-defence. This is an extremely ambiguous problem when dealing with individuals defending themselves. With the case of nations the problem becomes much greater.

It seems to me impossible to dismiss any of the theories mentioned as completely wrong. All of them have elements that are essentially true. To decide which means would be legitimate in the conduct of a particular war one would have to examine the circumstances under which the war is fought. The sound judgement behind the decisions would have to rest completely at the mercy of mankind and the appropriate authority figures. All we can do is hope that the choices following the just war theory really lead to a noble end and to the minimizing of the possible evil.

However, whether one is in favour of democracy or not depends not only on the ethical outlook of what ends the democratic process will achieve, but also on one’s perception of human nature and the equality of human beings. Thus, the defence of democracy relies on the idea of the intrinsic equality of human beings. Without this starting position it would be almost impossible to defend the concept of democracy. According to Locke, all human beings are of equal worth and should therefore take part in the decisions of government. This belief does not only include the worth of the human being by virtue that he or she is a human being, but also the equality of the capabilities of human beings to govern themselves. In Lockean terms, “no man can believe or know for any other man.”[2]

Thus democracy must start with the belief that human beings are all capable of making equally valuable decisions in matters concerning government. Those who attack the idea of democracy find in its basic assumptions inherent flaws. The Platonic view, for instance, does not see all human beings as equally capable of discerning between good and bad. From such a perspective, human beings fall into distinct categories by their nature and only a few “souls of gold” should be trained and allowed to be leaders of society.[3] Mob rule is here seen as something corrupt and undesirable in itself.

The democratic process today does not include all human beings by virtue of their humanity, for there are sectors of society which are not consulted for matters of government. We do not consider children, for instance, to be capable of making rational decisions concerning complex issues such as government. In the United States, serious criminal offenders, even when released from prison, lose their right to vote.[4] These are seen as necessary restrictions in the democratic process in order to ensure that rational and ethical decisions are made by individuals who partake in it. Thus, although not bound by universality, the principal and starting justification for democracy is “the assumption that ordinary people are, in general, qualified to govern themselves.”[5] The adoption of this view is necessary if we are to proceed further with the defence of democracy.

There are number of grounds on which democracy can be defended. These are usually formulated in relation to general interests, individual liberty, self-government and the growth and development of the individual citizen.[6] The defence of democracy relies on the failure of all other political processes. Namely, the strength of arguing in favour of democracy lies in the adoption of the “maximum feasible amount of…” formulation. This line of arguing will also be used in this essay, since although the democratic process entails the tyranny of the majority over the minority, it is the only political process in which at least the majority has the say in government matters, rather than the minority or elite. Here I am not alluding to any form of democracy in particular – liberal, direct or socialist – but the idea of the democratic process in general.

Through participation in the democratic process, the citizens are ensured equal consideration of their interests. This necessarily implies that the interests of the majority will prevail over the interests of the minority. Even so, the interests of the majority may be said to thus constitute the general interest of the people, while “the rule of the few will produce government in the interests of the few.”[7] This Utilitarian defence of democracy stipulates that whatever the outcome of the democratic process, the result will be the greatest happiness for the greatest number. However, this argument takes for granted that happiness is to be equated with realisation of interests. Nevertheless, happiness is not central to this argument, but rather that the realisation of general interest is itself a desirable end of the democratic process.

A similar line of arguing can be adopted to justify democracy by virtue of its allowing the maximum possible freedom of citizens. Inherent in the nature of the democratic process are rights, liberties and opportunities of individuals, such as freedom of expression and free elections. Therefore, “as long as that process exists then these rights, freedoms, and opportunities must necessarily also exist.”[8] By necessarily carrying with it these freedoms and rights, the democratic process offers to citizens the maximum possible amount of freedom, when compared to all other types of regimes.

As we have already stated, self-government is taken for granted by proponents of democracy as an indisputable good. The democratic process is based on the idea of government by the people and must therefore provide a degree of self-government. Although democracy as an ideal-type does not exist nor has ever existed, its various models have come the closest of all other regimes to ensuring that individuals participate in the decision making process. According to Rousseau, the state may serve as an “instrument of freedom only when all its subjects were at the same time sovereign.”[9] In order to live in an association, human beings need to conform to certain rules that are binding on all. Thus, democracy is the closest any political process has come to ensuring that those rules and norms are decided by a majority and, therefore, the closest any system has yet come to self-government.

However, the argument for the value of self-government that democracy ensures does not stop there. It goes further to claim that having a say in government matters is conducive to the development of the individual citizen as an ethical and social being. Furthermore, the citizen is able to realize his potential through active participation and ensure that his or her rights and freedoms are protected and further advanced.[10] This argument applies to the ideal-type situation where the democratic process ensures the active participation of the individual and facilitates his or her interest in the political matters of the community. However, the argument is not necessarily supported by empirical evidence. The trend in most Western liberal democracies suggests otherwise and hints at a growing political apathy of the citizens.[11] Therefore, the argument for the conduciveness of democracy to the growth of the individual must reside within the sphere of the ideal-type democratic process. It merely supports the idea of democracy itself and not its relation to technology, globalisation, capitalism and consumerism.

As a conclusion I would like to stress that whether we choose to defend democracy on the basis of the above-stated arguments ultimately depends on our notion of human nature, or its absence, and our understanding of the equality of human beings.  Moreover, the best defence for democracy comes from a realist perspective of its possibility and the possibility of anything else that is offered as its substitute. Applied democracy is vulnerable to much critique, but as a theoretical political process it stands more ground than any other alternative that humankind has produced.

The Charter had not been adopted unanimously, as opposition came from Great Britain and its then Prime Minister, Margaret Thatcher. Great Britain did, however, eventually sign the Charter in 1998 after the election of Tony Blair as Prime Minister. The nature of the Community Charter is non-binding and it is a political declaration. As such it has no legal effect and cannot be enforced legally. Although it still remains a political document with a programmatic nature, “it has given flesh and bones to Community social policies.”[2] It establishes the principles on which the European labour law model is based. The Charter specifically deals with freedom of movement; employment and remuneration; improvement of living and working conditions; social protection; freedom of association and collective bargaining; vocational training; equal treatment for men and women; information, consultation and participation of workers; health protection and safety at the workplace; protection of children and adolescents; elderly persons; and disabled persons. The supervision of the Charter consists of a reporting procedure in which an annual report on the implementation of the Charter is published by the Commission.

As has already been pointed out, the Community Charter is a non-binding declaration of intent by the Heads of State or Government of the Member States. Yet, its adoption marks a significant moment in the development of the social dimension in the EU. The former President of the Commission, Jacques Delors, who had made a commitment to addressing the social aspects of the single market, described the importance of the Community Charter in that it is a means of discovering the extent of agreement on common values by the Member States and how those commonly recognised values can be incorporated into the language of rights.[3] Moreover, its importance “is that it clearly spells out the whole range of the Community’s social policy objectives for the 1990s, and enunciates these in terms of a series of fundamental principles in a single EC-level text.”[4] All consequent instruments regarding social policy, such as the Maastricht Agreement on Social Policy, make reference to the Community Charter. The Treaty of Amsterdam explicitly bears reference to the Community Charter and “it is no longer unthinkable that the Court of Justice might have the power to interpret and enforce the Charter.”[5]

At the level of ideology this implies identifying abuses of economic, social and cultural rights as serious infringements on human dignity. Moreover, to achieve this, the general opinion must be based on a certain vision of unfairness when these rights are violated. This must in turn start with an understanding of the social nature of human beings. Radical forms of individualism need to be combated at the ideological level not only to achieve the goals set out in the UDHR, but because they are inherently false in their abstraction of individuals from their social contexts. While a complete refutation of individualism requires much more space than is available here, we can briefly counter it by emphasizing the essentially social nature of the development of human beings.

What this implies is that human beings require social recognition through dialogue. This dialogue takes place in social relationships which are themselves largely determined by the allocations of resources in a given society. The distribution of material resources largely “affects the choices people are able to make and the kinds of people they are able to be.”[2] Bertrand Russell pointed out exactly this in his claim that “different conditions bring out different sides of our natures, which is why it is worth thinking about political arrangements at all.”[3] Once humans become aware of the interdependence of self and society and the role of material resources in this dialectical relationship, it is easy to understand the moral basis for not only economic and social, but also cultural rights.

Proponents of radical individualism seem to overlook the fact that becoming an individual always occurs “under the guidance of cultural patterns, historically created systems of meaning in terms of which we give form, order, point, and direction to our lives.”[4] Article 15 (a) of the ICESCR acknowledges this fact by requiring the State Parties to recognize the right of everyone partake in the cultural life of the community. We have reached a stage of recognizing all human beings as possessing a certain potential due to which we ought to accord them the respect which they deserve. That potential is something all humans share and is the basis of sameness and equality. There is another vital need, however, which arises out of this principle and that is the need to be recognized for what one is. It is important to such an extent that “nonrecognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being.”[5]

The theoretical implications for the endorsement of the indivisibility and interdependence of human rights are there. Yet, in the field of praxis the matter becomes somewhat more difficult. One of the reasons for this is the unfair distribution and level of functioning of mechanisms that promote the various rights. The vehicles of human rights promotion are also unequally developed worldwide. This is directly related to non-governmental organizations (NGOs) and international non-governmental organizations (INGOs) in the field of human rights.

The Charter lists 19 economic and social rights and employs a formula of obligations on State Parties to move towards their progressive realization. It is divided into 5 parts and also consists of a preamble and an appendix. The preamble of the Charter, as that of the ECHR, declares the objective of the Council of Europe of achieving greater unity between the member states through “the maintenance and further realization of human rights and fundamental freedoms.” It further states the State Parties “are resolved to make every effort to improve the standard of living and to promote the social well-being of their populations by means of appropriate institutions and actions.”

In Part I of the Charter is to be found the list of 19 principles accepted as policy goals by the State Parties. Part II elaborates provisions, in the following order, on the right to work; the right to just conditions of work; the right to safe and healthy working conditions; the right to fair remuneration; the right to organize; the right to bargain collectively; the right of children and young persons to protection; the right of employed women to protection; the right to vocational guidance and training; the right to protection of health; the right to social security; the right to social and medical assistance; the right to benefit from social welfare services; the right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement; the right of the family to social, legal and economic protection; the right to engage in a gainful occupation in the territory of other Parties; and the right of migrant workers and their families to protection and assistance.[2]

The undertakings of State Parties are elaborated in Part III of the Charter. The State Parties do not have to accept Part II of the Charter in its entirety upon ratification. However, they must accept ten or more articles, which must include the acceptance of five of the seven key articles, or 45 paragraphs of the Charter.

The supervision procedure of the implementation of the undertakings listed in the Charter is explained in Part IV. The Protocol of 1991 has modified some of the provisions of the Charter and has contributed to a notable improvement in the supervisory mechanism. The monitoring system consists of a reporting procedure, whereby the State Parties are under obligation to submit reports on a yearly basis on how they have implemented the provisions of the Charter both legally and in practice. The reports are examined by the European Committee of Social Rights (ECSR) which consists of thirteen independent and impartial members elected for a period of six years by the Committee of Ministers. The ECSR decides whether a State Party has implemented the provisions in law and practice and publishes its conclusions every year.

In case a State Party does not act upon the decision of the ECSR and amend the situation in order to comply with the Charter, a recommendation is given to the State by the Committee of Ministers. The work of the Committee of Ministers is prepared by governmental representatives of the State Parties, or Governmental Committee. It in turn receives assistance from observers from the European Trade Union Confederation (ETUC), the Union of Industrial and Employers’ Confederations of Europe (UNICE) and the International Organization of Employers (IOE).

Part V of the Charter is dedicated to the final provisions on derogations, territorial application and restrictions. In the Appendix are included clarifications of some provisions of the Charter which were requested by governments in order to clearly define what their obligations entail. Some provisions in the Appendix clearly show the difference between the ECHR and the Charter. “Unlike the European Convention, the rights of the Charter do not apply to every person within the territory of the Contracting Parties.”[3] The scope of the Charter applies only to foreigners who are nationals of other State Parties.