14 - The Various Faces of Fundamental Rights

Summary

Dieter Grimm starts off with the claim that fundamental rights, at their origins, were double-faced – proclaimed as universal, but made positive only through, and in, the laws and territories of states. His contribution then shows how this double–faced character was lost from view, only to resurface in the era of legally binding international human rights instruments. The adoption of these instruments, Grimm argues, ‘has changed the conditions under which fundamental rights in state constitutions operate & The national bills cannot be interpreted and applied anymore in a purely national perspective. As far as the rights from different sources overlap, both have to be taken into account and accommodated. This brings back the double–faced character to national fundamental rights’, this time, though, within the realm of positive law. The focus of Grimm’s chapter is on the work of domestic and international courts in accommodating these double-faced rights provisions and their demands. Grimm concludes his chapter by returning to his own judicial experience with a variant of the overarching question raised by Helmut Aust: the question of how local institutions – local democracy, local rights protection – can coexist with ‘hyperglobalization’.