European “Freedoms”: A Critical Analysis

• Published date: 01 March 2021
• Author: Catherine Audard
• Date: 01 March 2021
• DOI: http://doi.org/10.1111/raju.12306

© (2021) The Authors. Ratio Juris published by the University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 34 No. 1 March 2021 (29–44)

European “Freedoms”:

A Critical Analysis

CATHERINE AUDARD*

Abstract. Faced with the present migrant crisis and the dismal record of Europe in protecting

vulnerable refugees’ and migrants’ rights, what could be the view of the moral philosopher?

The contrast between the principles enshrined in the European Charter of Fundamental Rights

and the reality of present policies is shocking, but more scrutiny will show that it is the result of

a larger trend towards an understanding of freedom mostly in economic terms, at a time when

economists such as Amartya Sen have revised their approach to economic growth and pros-

perity, noting the central role played by a much richer conception of freedom. The paper will

scrutinize these inconsistencies and the conception of the person from which they derive and

will provide an alternative and more coherent moral vision that could strengthen the legitimacy

of the European Charter, at a time of growing dissatisfaction and so- called democratic deficit.

Such a vision could help reconnect the Charter with a conception of the human person as in

need not solely of passive legal protection, but also of active promotion of her self- respect and

capabilities, and of her aspiration to a valuable life.

Over thirty years ago, on August 19, 1989, citizens of central and eastern Europe

under communist rule started to vote with their feet, crossing forbidden borders and

flooding into the so- called free world. They hoped that a union of law- governed,

prosperous countries, “founded on the values of respect for human dignity, freedom,

democracy, equality, the rule of law and respect for human rights, including the

rights of persons belonging to minorities” (Art. 2 of the Treaty on European Union),1

would welcome them and give them the support that they needed. Is the European

Union still as attractive as it was in 1989? How do the so- called European freedoms

stand in respect to these tremendous aspirations? Are the dignity, security, prosper-

ity, and legality taken for granted in the Union still holding in spite of recent histori-

cal and political developments? Are not many political, economic, and moral

weaknesses still unfixed, threatening the very survival of the Union?

In 2015, as a result of armed conflicts, terrorism, and civil wars in Syria and Iraq,

migrants from the Middle East started pouring through the southern borders of the

1 The 2009 Charter of Fundamental Rights of the European Union (Lisbon Treaty) states in its

preamble that “the Union is founded on the indivisible, universal values of human dignity,

freedom, equality and solidarity.”

This is an open access article under the terms of the Creat ive Commo ns Attri butio n- NonCo mmerc ial- NoDerivs License,

which permits use and distribution in any medium, provided the original work is properly cited, the use is non- commercial

and no modifications or adaptations are made.

* I am grateful to the organisers of the Milan conference European Values in the Charter of

Fundamental Rights (September 9 – 11, 2019) for their invitation, giving me an opportunity to test

my ideas on economic freedom and capabilities. I would also like to thank Andreas Niederberger

for his stimulating comments. This paper is here published within the framework of the

NoVaMigra project, which has received funding from the European Union’s Horizon 2020 re-

search and innovation programme under Grant Agreement No. 770330.

Catherine Audard

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Ratio Juris, Vol. 34, No. 1© (2021) The Authors. Ratio Juris published by the University of Bologna and John Wiley & Sons Ltd.

European Union. The response of the Union and the detention camps on Lesbos or

Samos, reminiscent of concentration camps, shed a sinister light on the promises cre-

ated by the so- called European freedoms. Limited in reality to European nationals, dis-

connected from universal human rights and freedoms, in particular the right to life and

security, to respect for one’s dignity, they reveal a trend which I will describe not solely

as an obvious return to protectionism and nationalism, but fundamentally as an under-

standing of freedom in mostly economic terms, a tendency towards the “commodifi-

cation” of freedom (Esping- Andersen 1990, 35– 7). This leads to access to freedoms and

rights for non- EU migrants being evaluated mostly in terms of costs and benefits, that is

to say, of their utility, rather than in terms of universal duties to fellow human beings. I

suggest this trend echoes similar worrying developments concerning social policies and

social rights for EU migrants that have led to “freedom of movement of persons increas-

ingly being seen as politically problematic, and most likely unsustainable; it has been re-

duced to just another form of ‘immigration’ like others, that must be subject to the same

kinds of sovereign control, restriction and selectivity imposed on conventional forms of

international migration from outside the EU” (Barbulescu and Favell 2020, 151).

How did that come about?

The main values and norms of the European Union, short of a constitution and

its bill of rights, are enshrined in the European Charter of Fundamental Rights of

2000 and the Lisbon Treaty of 2009 as well as in the European Convention on Human

Rights of 1953. But different norms are also at work in the institutions and policies

of the EU, namely, the famous “fourth freedom,” expressed in the Treaty of Rome

of 1950 and omnipresent during the Brexit negotiations: freedom of movement for

goods, services, capital, and labour (then enlarged to citizens). One cannot fail to be

struck by a feeling of inconsistency and of conflicting strategies when one takes a

closer look at such an extension from “goods” to “citizens,” which has proved highly

problematic and leads to treating people as mere commodities.

My aim in this paper, as a political and moral philosopher, not a specialist of

the EU, will be, firstly, to scrutinize these inconsistencies and the conception of the

person from which they derive and, secondly, to provide an alternative and more

coherent moral vision that could strengthen the legitimacy of the Charter, at a time

of growing dissatisfaction and so- called democratic deficit, and could help reconnect

it with a conception of the human person as in need not solely of passive legal pro-

tection, but also of active promotion of her self- respect and capabilities, and of her

aspiration to a valuable life. Whereas, among economists, the realization that a strict

focus on growth of GNP could be extremely limiting and detrimental has led to a

new vision of the importance of freedom to measurements of wellbeing (Sen 1999,

5), the Union seems to have regressed and adhered to a narrow focus on utilities,

income, and wealth to justify its more recent immigration policies.

1. Freedom: A Conceptual Analysis

Let us start with a point of vocabulary. Freedom is not the same as liberty and, usu-

ally, constitutionalists and political philosophers talk of liberty, that is, the possibility

to act, think, work and move around within the boundaries of the law according to

the principle Nullum crimen, nulla poena sine lege. Liberties and rights are synony-

mous in a rule- based political context, with corresponding duties to abide by the law.

Liberty is freedom within the law, the main questions being, of course, that of who