Frank Michelman, The protective function of the state in the United States and Europe: The constitutional question, in European and US Constitutionalism (Georg Nolte ed., 2005).
Abstract: The comparison drawn: a difference in legal doctrinesA seminar is in progress. The general theme is relationships and comparisons between US and European constitutionalism. The programme includes, as one topic for discussion about which you, as an American constitutional lawyer, are especially invited to comment, ‘the protective function of the state’. What question, exactly, is being put to you?Is the issue supposed to be ‘ESR’, economic and social rights? In relation to constitutional law, the question of the state’s ‘protective’ function easily could be taken to mean – or to include – the question of obligating the state, by constitutional-legal mandate, to ensure provision to all citizens of the means of satisfying certain material interests such as subsistence, housing, health care and education. I take the meaning, though, to be a different one. By its reference to the state’s ‘protective function’, I understand the seminar programme to mean the state’s function of safeguarding inhabitants effectively against various forms of violation and intrusion at the hands of fellow inhabitants. Thus, I envision the comparative seminar’s agenda listing, as two separate topics for discussion, ‘ESR’ and ‘the protective function of the state’.Thus understanding the ‘protective function’ question, it seems the response to it might be both short and sweet. Alike in US and European law, everyone enjoys a range of civil rights against abusive treatment by other members of society.