The Variable Subject of the EU Constitution, Civil Liberties and Human Rights

The Variable Subject of the EU Constitution, Civil Liberties and Human Rights European Journal of Migration and Law 6 : 381–394, 2005. © 2005 Koninklijke Brill NV . Printed in the Netherlands. 381 The Variable Subject of the EU Constitution, Civil Liberties and Human Rights ELSPETH GUILD* Introduction What is the relationship between civil liberties and human rights in the European Union? There are many ways of trying to describe this relationship, but in this paper I will consider first their formation and subsequently their content as expressed in the EU constitution. These two aspects are of central importance to understanding the role which they play in the EU. The relationship of the two concepts to the nation state is pivotal. Civil liberties have been part of the mechanism of 19th cen- tury nation state formation, having their focus on the relationship of the governed to the governing. Human rights as currently expressed in international law are a 20th century phenomenon: a reaction against legal positivism in the nation state sys- tem. They are a means of limiting the power of state authorities to determine the content of civil liberties within the state. In this context, I will build on the under- standing of constitutional rights as the codification of http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png European Journal of Migration and Law Brill

The Variable Subject of the EU Constitution, Civil Liberties and Human Rights

European Journal of Migration and Law, Volume 6 (4): 381 – Jan 1, 2004

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Publisher
Brill
Copyright
© 2004 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1388-364X
eISSN
1571-8166
D.O.I.
10.1163/1571816044088809
Publisher site
See Article on Publisher Site

Abstract

European Journal of Migration and Law 6 : 381–394, 2005. © 2005 Koninklijke Brill NV . Printed in the Netherlands. 381 The Variable Subject of the EU Constitution, Civil Liberties and Human Rights ELSPETH GUILD* Introduction What is the relationship between civil liberties and human rights in the European Union? There are many ways of trying to describe this relationship, but in this paper I will consider first their formation and subsequently their content as expressed in the EU constitution. These two aspects are of central importance to understanding the role which they play in the EU. The relationship of the two concepts to the nation state is pivotal. Civil liberties have been part of the mechanism of 19th cen- tury nation state formation, having their focus on the relationship of the governed to the governing. Human rights as currently expressed in international law are a 20th century phenomenon: a reaction against legal positivism in the nation state sys- tem. They are a means of limiting the power of state authorities to determine the content of civil liberties within the state. In this context, I will build on the under- standing of constitutional rights as the codification of

Journal

European Journal of Migration and LawBrill

Published: Jan 1, 2004

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