Human Rights and within Multi-Layered Systems of Constitutional Governance: Rights Cosmopolitanism and Domestic Particularism in Tension
University College London - Faculty of Laws
March 30, 2009
University College Dublin Law Research Paper No. 12/2009
European states are embedded in multiple and overlapping layers of constitutional governance. The same is true for the international and transnational systems of governance, such as the WTO, within which both the EU and its constituent member states are firmly embedded. It is inevitable that these different layers of governance will at times rub against each other, producing inter-layer "irritation". This "irritation" can take different forms, but in general often has the capacity to generate significant change, development and evolution within both national and transnational systems. Inter-layer irritation can have particular significance where the protection of fundamental rights is at issue, where tensions are often generated between "cosmopolitan" and "particularist" approaches to rights. "Cosmopolitan" rights standards can be defined as legal norms generated by international or transnational processes of deliberation and embedded in transnational layers of governance. "Particularist" standards, in contrast, are generated within the specific constitutional order of each state and often interpreted by national courts in a manner that reflects how these rights have emerged and evolved within the particular national context in question. The "open architecture" of the European human rights system often allows such tensions to be resolved through a process of pluralistic and political interaction. However, there are times when sharp fault lines are uncovered, where the interaction of cosmopolitan and domestic systems generates conflict, generating inter-layer "irritation" but also at times driving forward the process of legal change and development.
Number of Pages in PDF File: 29
Keywords: Human Rights, Constitutional Law, European Law, Comparative Law
JEL Classification: K10, K30
Date posted: March 30, 2009 ; Last revised: August 11, 2009
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