Competition and community: constitutional courts, rhetorical action, and the institutionalization of human rights in the European Union

Abstract

ABSTRACT The institutionalization of human rights in the EU started when the ECJ began to make references to fundamental rights in its jurisprudence in the late 1960s. In this article, I explain this development as rhetorical action among constitutional courts – the ECJ, national constitutional courts, and the European Court of Human Rights – which are engaged in a competition over jurisdictions in the liberal international community. Because human rights are the highest-order constitutional norms in this community, successful claims for legal autonomy and supremacy must be based on the ability of courts to protect human rights at least as effectively as their competitors. In order to defend its autonomy vis-à-vis national constitutional courts, the ECJ incorporated human rights into its case law. However, by basing its jurisprudence on the European Convention on Human Rights, it has become increasingly entrapped in acknowledging the supremacy of the Strasbourg Court.