On Uses and Misuses of Human Rights in European Constitutionalism

Abstract

This paper challenges the prevailing account in European constitutionalism that human rights were absent from the genesis of the EU legal order. According to that account, human rights were of secondary importance at the early (preponderantly economic) stages of European integration. Only decades later did the European Court develop doctrines protecting human rights and only after pressure from municipal legal orders – principally Germany and Italy – whose judges grew concerned that EU legislation could violate with impunity rights protected under national constitutions.

This paper defends an alternative account. It argues that human rights are not late additions but from the beginning part of a comprehensive, effective and normatively viable European legal order. As the European Court of Justice has consistently recognized, the core pillars of European constitutionalism – autonomy vis-à-vis national and international law and supremacy in relation to municipal norms– would have been untenable in a post-World War II legal order if human rights had not been an integral part of European constitutionalism. Interpreted through this lens, the tensions between German and European constitutionalism suggest a different conception of the nature of legal authority in the European Union than the one currently on offer from the prevailing account.

The close connections between human rights, the argument from democratic self-government and the ongoing turn to identity in European constitutional doctrine make the project of revisiting the uses and misuses of human rights an essential part of the debate about the future of European legal integration.

Keywords: human rights, European Union, constitutionalism, courts, German constitutional law, constitutional identity, democracy