Fundamental rights and fundamental values in the old and new Europe

Abstract

By looking beneath the mere human rights texts, into the values that underline and fuel them, this paper demonstrates, first, how historically formed values and convictions become directly translated into human rights and constitutional protection and that, second, there are discernable value differences between the ‘new’ EU Member States and the ‘old’ Member States in this regard. The chapter proceeds as follows: first, three case studies are offered which show how historically conditioned convictions shape human rights and constitutional adjudication in the various European systems, and how the nation-specific answers to a European legal problem differ. The three case studies chosen will focus on secret legislation, right to privacy and freedom from supervision, and a general right to economic freedom and entrepreneurship. Second, by the way of generalisation, it is suggested that there is a discernable value difference between the ‘new’ and the ‘old’ Europe, or rather between Europe with more recent dictatorial experience and that one without. The difference is perhaps not one in kind, but one in degree. How much stress will be put on the importance of protection of the space of individual freedom, be it personal or economic, in the individual case in conflict with other values? Third, it will be outlined how such difference in perception and values translates onto the European level and adjudication on human rights there, as well as how it shapes the interaction between the European and national levels in human rights issues and beyond.