12 Ratio Juris 1 (1999)

handle is hein.journals/raju12 and id is 1 raw text is: 

Ratio Juris. Vol. 12 No. 1 March 1999 (1-10)


State Tasks and Human Rights*


ERHARD DENNINGER


Abstract. This paper analyses the change in the notion of fundamental and human
rights in Germany and throughout the European Union during the process of Euro-
pean integration. This change, that can be summarized in the formula from human
rights to state tasks, signifies the integration and partial amendment of the French
Revolution's ideals (libert6, 6galit6, fraternit6) with the new ideals of security, diversity
and solidarity. These new ideals make it necessary for the state to play a positive role
in devising, for example, a policy of minority recognition and a long list of social rights.
These rights are often translated into merely generic norms on state objectives
and not directly binding law in force. This means that such rights increasingly
become a political and legislative issue making it more difficult for the Courts to offer
guarantees.**

I.
Contemporaries are often unaware of a radical change being such, nor do
they grasp its meaning, especially when the change involves neither blood-
shed nor revolution. Only in retrospect, reading texts written thirty or forty
years ago, are we surprised to see that the same concepts are used nowadays
with a completely different meaning from that of the time. A change of this
kind, whose consequences have yet to be fully understood, is taking place in
Germany today vis-A-vis the notion of fundamental rights. In addition, Euro-
pean integration has meant that this process is not confined to Germany alone.
  In recent years, Germany has had two occasions on which to reflect in
depth on the function of a constitution in general and on the functions of
fundamental rights in particular. The first occasion was the restoration of
German unity in 1990 which entailed the need to devise new democratic and
liberal constitutions for the five new Lfinder of East Germany. The parlia-
ment of the enlarged Federal Republic followed the directive of the Treaty on
German Unification dated 31st August 1991 (art. 5), providing for discussion
of the problems of reforming the Basic Law (Grundgesetz) of the land. A

* Translation by Anne Collins.
** Abstract by Giorgio Bongiovanni.
 Blackwell Publishers Ltd 1999, 108 Cowley Road, Oxford OX4 lJF, UK and 350 Main Street, Malden, MA 02148, USA.

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