Academic journal article Trames

Primary and Secondary Law-Making in the Renewed EU

Academic journal article Trames

Primary and Secondary Law-Making in the Renewed EU

Article excerpt

1. Introduction

The article focuses on primary and secondary law-making in the European Union (hereinafter EU). As the notion of democracy has different dimensions--one can distinguish between universal and liberal democracy, democracy in external and internal relations, constitutional democracy, representative and participatory democracy, input and output democracy, in addition the legal, historical, political, and other meanings of democracy, which has changed and will change in time and space, so do the laws and law-making procedures.

Beginning with human rights, because many people understand human rights as universal rights based on morals and ethics--i.e. on ontological common truth or objectivity, even those rights can be recognized and applied only subjectively. The reason is that as no human being can know what the entire common truth is, no-one is objective. Consequently, there exist only subjective ideologies (Habermas 2002:16) and subjective laws, even if in global covenants. The same subjectivity-rule applies towards other, more state-centred rights. Therefore, the frequently asked questions about rights have been--"What are the rights that should be recognized?", and "How is consensus achieved in order to determine such rights?".

Those questions are equally important within states, as well as in their relations with other states and international actors. The Universal Declaration of Human Rights (hereinafter UDHR), for example, has been created through an extraordinary (Khan 2003:2) consensus across the world. The European Convention on Human Rights (hereinafter ECHR), reflecting the ideas in the UDHR, has been created through a consensus in Europe. Those two afore-mentioned acts contain human rights. But besides human rights there exist also other rights that are supranationally recognized. If one takes the laws of the EU, where the Member States' legal systems differ, then beginning with the understanding of basic values and ending up with, say, property laws, it may indeed be difficult to reach consensus on rights. Thus, the participants in law-making procedures of such suprastate systems constantly find themselves in the condition, where they have to formulate laws from relative universality. As recognition procedures involve people, and people can be nothing more than subjective, law-making procedures may face the questions: "Can there exist absolute rights at all or are all rights constrained in the (subjective) interest of someone?", "How does one know that the right values have been codified?", and "How does one become aware of the values that need to be codified (uncodified morals)", "Isn't the content of rights actually determined by the political will of the governors?" (Schiappa 2003), and "How to avoid the latter?", "Is such avoidance possible?", "Who should and how be authorized to say that something is acceptable to everyone?" (Wolff 2009:64).

When people try to reach consensus on values, the agreed values must be recognized in order to be law. For that aim there exist purposive agencies (Winston 1989), including democratic state or suprastate recognition mechanisms, through which mechanisms consensus is reached about the content of a concrete right and the rules are enacted. Certain structures and procedures are foreseen for such activities. Although law is generally not supposed to fix what morals is, only a recognized right creates legal relationship.

In addition to formal recognition, there exists societal recognition of rights that means legitimation, which is formally achieved by direct participation (direct elections). A society (whether more or less universal or state-centred) that wishes to be named democratic, as a key element has representative government, elected through free elections. The powers in a democratic society are separated and balanced. The exercise of powers is limited by the rule of law, which means that limitation of rights must be regulated by law (Merrills 2000). …

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