"Rights, constitutionalism and European integration: The Charter of Fundamental Rights of the EU"

Klausen, Jytte. (2001) "Rights, constitutionalism and European integration: The Charter of Fundamental Rights of the EU". In: UNSPECIFIED, Madison, Wisconsin. (Unpublished)

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Abstract

The argument put forward here is that the Charter represents a significant step in the evolvement of a new European political identity. With the Charter, Europe has joined a transnational movement of new rights constitutionalism. The Charter imports to the European legal tradition elements of what the comparative legal scholar, Many Ann Glendon, once referred to as "rights talk." Glendon took a dim view of "rights talk," which she defined as a uniquely American propensity to reconceptualize value issues as legal entitlements. It is an unfortunate tendency, in her view, because issues which really are about the balancing of different interests - say of women's interests against men's - become matters of legal judgment and the judgments of judges and lawyers rather than elected officials. The Charter represents a significant innovation in European constitutional thinking because it conceptualizes basic European values as "rights" and does so through the vehicle of constitutionalism. Charter advocates repeatedly discussed the Charter as part of the process of the constitutionalization of Europe but never as an effort at constitutionalism. There is a difference between constitutionalization and constitutionalism, and the Charter may well fail at the first and succeed at the latter. In what follows, I will discuss this distinction and why it matters, and then turn to a discussion of the Charter process and content.

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