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State as a Giant with Feet of Clay

Edited By Jan Kysela

Many contemporary states, even the European ones, resemble a giant with feet of clay. They tend to be greater in terms of the scope of governance, rather than in terms of their territory or population. Since they are great, they are also costly, though often very limited in various respects. One perilous alternative is the state-giant of Thomas Hobbes. But there are other possibilities as well, such as the liberal state, effective, yet small or lean; or the dreamt-up state of the conservatives, based on the principle of subsidiarity, acting only as a complement to civil society. The fundamental thesis in this book is that the states in which we live are great, however weak. The book then discusses the main categories of limits on state power, such as human rights, international law, EU law and societal changes.
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Human rights limits on state power

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I.Introduction

We live in an age of human rights.1 Human rights have become – at least in terms of rhetoric – a central influence determining the transformation of modern Western society following the Second World War. Modern Western society puts at the forefront the individual with his or her inalienable rights, and is therefore seen as more individualistic than pre-modern society in which an individual was primarily someone who owed duties. Such a transformation inevitably also impacts the “classical architecture” of public law, which has since the end of the Second World War been facing new issues and challenges directly related to ­human rights.2 Are human rights “trumps” that prevent the state from interfering with the elementary spheres of human existence?3 If so, which aspects of the spheres of human life may be considered “elementary”? Or should human rights be conceived rather as approximative value propositions and the state strive to implement them in the widest possible scope?

Finding answers to these questions, as well as many other questions, is difficult due to the plurality of theories of human rights and the sources of their legitimacy. Further difficulties concern the existence of various methods for resolving mutual conflicts between human rights as well as conflicts with public goods, and the unclear relation between universal human rights and specific rights enshrined in the constitutions of individual states. An unclear approach to these issues does not only result in the delegitimising of state power, but also of...

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