By Eduardo Gill-Pedro
In her recent entry on this blog, Prof. Capaldo criticised the judgment of the Court of Justice of the EU in Taricco II by arguing that there exists, in international law (or what the author calls ‘global law’), a fundamental human right to policies that criminalise tax fraud. According to the author, the Court presented in its judgment a false dichotomy between the need to ensure the effective application of EU law and the need to ensure the protection of constitutionally guaranteed rights of the accused. This is because the effective application of EU law also entails the protection of ‘social human rights’, presumably by the proper use of the taxes for public expenditure. In this blog entry I argue that Prof. Capaldo’s argument presupposes a particular understanding of human rights, and that this understanding of human rights is problematic from the perspective of democratic theory.
The understanding of human rights as socially beneficially outcomes which are to be ensured through the proper expenditure of tax revenue, sees human rights as policy goals. Such policy goals are then to be optimized and balanced against other policy goals situated on the same level. This is made clear in the blog entry, which argued that there was a need to “balance[e] the rights under these articles [social rights which would be secured through tax collection] and the accused’s individual rights guaranteed by the legality principle”.
Such an understanding denies human rights their deontological force as legal rights, which can be demanded by the subject from the state, and thereby destroys what Jürgen Habermas called the ‘firewall’ erected in legal discourse by human rights. If we think (with Habermas) of human rights as conditions of democracy, then we need to conceive of human rights as something that allows subjects of a legal order to challenge the claims of authority which that legal order makes over those subjects in the name of the collective. This is because the democratic legitimacy of such claims of authority rests precisely on the ability of those over whom that authority is claimed to challenge that claim as not representing them. So the challenge in the name of human rights does not entail a claim that the individual has not received a particular good, but rather it entails a claim that the individual has not been treated with equal concern and respect when decisions about goods were made. This view of human rights does not limit human rights to so called ‘political’ rights. A state can deny individuals their human rights by denying them access the healthcare, education, or other social goods. But the breach of human rights does not consist of the failure to provide those goods per se, but in treating some as less worthy of equal respect and concern when decisions are made about those goods.
However, if we think of human rights as policy goals, then we transform them into what Ingerborg Maus calls “legal goods (rechtsgüter) defined by an ‘expertocracy’ [which are then] rationed and allocated to the subject (untertanen) as the state sees fit”. The role of the courts in rights adjudication is also transformed. Rights adjudication is no longer a mechanism that will allow those over whom power is claimed in the name of the collective to challenge the legitimacy of that claim, but instead, as Maus points out, “serves to empower and legitimate the state apparatus in programming itself”. In the cases of Taricco II, as read by Prof. Capaldo, it will not be the state which will allocate those legal goods, and which will therefore be empowered to programme itself, but rather some putative ‘global law’.
So the author is asking the Court of Justice of the EU to require the Italian courts to set aside M.A.S and M.B’s human right to a fair trial, as guaranteed by the Italian Constitution, in order to pursue the policy goal of efficient tax collection, because, in the author’s interpretation of global law, such efficient tax collection is also in the service of fundamental rights which Prof. Capaldo interprets as also present in the global legal order.
I suggest that we, as legal scholars engaged in transnational law, need to reflect on what projects we may be empowering, and what structures of dominance we may be legitimating, when we suggest the stripping away of human rights from individuals, where those human rights form the conditions for the democratic legitimacy of national legal orders (still the only political communities that can claim any kind of democratic legitimacy). This need for reflection is all the more acute where we ourselves, as scholars with inside knowledge of ‘transnational law’ or ‘global law’, are in turn empowered by this move, as we would be part of the ‘expertocracy’ which would play a key role in decisions about the allocation of the ‘legal goods’, in whose name democracies would be constrained.