Your are right, that some European constitutions (Netherlands, Denmark, Luxembourg, etc.) do have a guaranty of the human rights, as state-given. Others, following a original French idea, show an absolute different approach. They define the raison d’etre of the state in the Human Rights. In this constitutional thinking, the protection of the Human Right is basis of legitimate state. In other words: The Human Right do not exist, because the state declares those, but the state exists, because the state protects the Human Rights. If the state would not do so, the state would loose its legitimation. Such wording you could find the French Constitution of 1789, 1947 and 1958, the German Constitution of 1949 (where even this argumentation has brought one step further, that the abstract idea of the “Human Dignity” is seen as the source of the Human Rights and therefore the Human Dignity is seen as the raison d’etre of the state; an idea based on Immanuel Kant) or the Czech constitution of 1992 (to name a few).

On the other hand in the UK, where in England the Common Law had his origin, the sole guaranty of the Human Rights, which Parliament can’t revoke, is based not in British law, but in international Treaties the UK has signed, namely the EU-Treaties and the European Convention of Human Rights. Contra this thinking the German postwar constitution explicit forbids any amendment to the constitution revoking the Human Rights: Something which is logic, following the idea of the Germany’s postwar constitution, that the Human Rights and the Human Dignity are the primary sources of the legitimation of the state.

I do not think, we can pin liberty down to “Common Law” versus “Civil Law”. Perhaps it easier to pin this down to “Natural Law”, the believe that humans have by nature certain rights, because they are Humans, and opposite a “positive law”, which has a formalistic approach, that the sovereign, how ever this is (people, king, parliament, etc.), can define rights and duties according to his will by making law. This is at the end not a legal question, but a philosophical one – or what makes a Human Being a Human Being.

Xanthippa says:
What you say is correct – there are ‘civil law’ societies which are dedicated to protecting ‘human rights’ and which derive their ‘raison d’etre’ from them.

And THAT is my point.

Both protect the rights of the individual or restrict those. Historically, the direct predecessor of modern Civil Law, the “Ius Commune”, the adaptation of Roman Law till the French Revolution, played an important role in protecting the individual – at least in the Holy Roman Empire via the Imperial Chamber Court.

The modern adaptation of the Civil Law is based on the Human Rights, as e.g. expressed in the French Declaration of 1789 (still valid constitutional law in France), which state in Art. 4: “Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law.” A rule corresponding e.g. with the Roman Law rule of “volenti non fit injuria”; something, as shown in the Spanner trail the English Common Law denials.

Xanthippa says:
I do not disagree with what you are saying. The difference between the codes is not in the ‘rights’ but rather in the attitude where these originate. Under civil law, for a ‘right’ to exist, the state must ‘list’ it (in effect, approve it) – as is the case with the Constitutions you cite. Therefore, it is not a ‘right’ until the STATE makes it a ‘right’. In Common Law, ‘rights’ are not listed in any special spot (like a Constitution) because they are already presumed to exist with each individual.

I’m not sure if I am explaining it clearly…