John L. Murray


The role of the courts in the protection of human rights in any legal system is a constitutionally sensitive one. The observance and protection of such rights articulate with many aspects of the exercise of governmental and legislative power. The value nature of human rights accentuates these sensibilities. Some have viewed sovereign law as an essential ingredient in the make-up of national identity, a perception which tends to confirm a presumption that legal systems, while responsive to new pressures, are nonetheless holistic, coherent, and state-bound. National law is a rampart against outside corruption of the national ethos. Inevitably all of this poses particular challenges for a supranational court with jurisdiction to pass judgment on human rights compliance, directly or indirectly, by states that are justly proud of their own legal democratic traditions. The exercise by the European Court of Justice (“Court of Justice” or “Court”) of jurisdiction to protect the individual from breaches of their fundamental rights is a constitutional role which trammels not only the exercise of political power by the institutions of the European Community (the “Community”) but indirectly (and often directly) the use of governmental and legislative power at a national level. This constitutional role, exercised in the context of the doctrines of primacy and direct effect, challenges the ideology of a state's legal autonomy and the associated sense of self-determination. Not surprisingly, the Court of Justice at the early stages showed a marked reluctance to be drawn into this area.