Law, Liberties, and their Relationships: The Development of a Controversial Issue from the U.S. Bill of Rights to the EU Charter of Fundamental Rights

Year 2015, Issue: 46, 47 - 89, 01.05.2015

Edmondo Mostacci

https://doi.org/10.1501/Intrel_0000000301

Abstract

Law, Liberties, and their Relationships: The Development of a Controversial Issue from the U.S. Bill of Rights to the EU Charter of Fundamental Rights

Abstract

The relationship that exists between the law and civil liberties has characterized the development of the same idea of freedom. Whilst in the civil law countries, during the XIX century, the law was considered as the principal means in order to protect the liberties that liberal revolutions had affirmed, in United States the congress was thought as the first menace for individual freedoms. These two approaches illustrate a more general issue: the protection of civil rights needs at the same time two different and potentially contradictory conditions: a The Legislator must actively contribute and adopt regulations that define the individual circle of liberty; b The constitutional system has to control the legislator in order to prevent him from passing legislation that curtails individual freedoms. These needs directly impact the drafting of constitutional provisions that protect liberties and lead its evolution through the nineteenth and the twentieth centuries. Tihs essay investigates this topic firstly through an analysis of the main theories that legal scholarship developed during the last two centuries on the relationship that exists between law and freedom. Secondly, it analyses constitutional drafting in order to examine the concrete relationship that exists between law and liberties in some relevant constitutional experience, from the U.S. Bill of Rights to the EU Charter of fundamental rights

Keywords

Law, Liberties, Relationships