Chapter 6 Framing justice claims as legal rights: how law (mis)handles injustices
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Scholars disagree as to whether law ought to include justice considerations, and whether it can effectively address injustices, such as misrepresentation, maldistribution or misrecognition, through the conferral and enforcement of legal rights. In this chapter, we address these questions, drawing on research carried in the ETHOS project involving a theoretically informed ‘black-letter’ law analysis of international, European, national and local legal frameworks which regulate voting, housing and education in six European countries (Austria, Hungary, the Netherlands, Portugal, Turkey and the United Kingdom). We outline the relative importance of rights as a vehicle for justice in the European context, before introducing key theoretical debates on the relationship between law and justice, and relevant conceptual features of legal rights, pointing to some of the challenges of framing different justice claims as rights in Europe. We then explore the scope and limits of addressing injustices through invoking and enforcing rights, by analysing how legal systems approach justice claims as legal rights and how they manage the confrontation between competing conceptions or dimensions of justice, expressed as conflicts between rights, between rights and other legally protected interests, between overlapping and competing legal orders, and between law and politics (judicial deference). We conclude on the implications for achieving greater justice in Europe, and in particular the prioritization of certain justice claims, groups, or processes over others. In relation to the rights and policy contexts explored (vote, housing, education), the framing of justice claims as rights serves better the recognitive justice claims of selected groups, but struggled with promoting more equalitarian redistributive justice or challenging institutional obstacle to equal political representation.

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