A Juridical-Philosophical Reconstruction of Security between National Legal Systems and the European System of Fundamental Rights
Abstract: The concept of security is examined through its semantic, philosophical, and juridical evolution within a dynamic and multilevel framework. Starting from its literal meaning and historical-political stratification, the analysis explores its systemic function within contemporary societies, positioned between the primary need for protection and its potential role as a tool of normative legitimization. Particular attention is devoted to the relationship between security and legislative production, with reference to the expansion of the scope of criminal relevance and the role of deterrence policies. In the European context, security is analyzed through the lens of the “normative network” and the progressive integration of legal systems, with specific reference to the Charter of Fundamental Rights of the European Union and the jurisprudence of the Court of Justice. The study highlights the tensions between different levels of rights protection and models of supranational governance, emphasizing how security today represents a complex balance between freedom, fundamental rights, and collective needs.
Keywords: #Security #MultilevelSecurity #FundamentalRights #EuropeanUnion #ECHR #CFREU #CriminalLaw #SecurityPolicies #NormativeNetwork #Justice #Freedom #Balancing #GaetanoAlborino #EthicaSocietas #EthicaSocietasMagazine #ScientificJournal #SocialSciences #HumanSciences #ethicasocietasupli
Michele Junior Ciervo, qualified legal professional admitted to the practice of law, he serves as Head of the Administrative Department, General Affairs, and Demographic Services at the Municipality of Pietramelara (CE).
General Framework
The contemporary legal framework, also in light of current social dynamics, is increasingly characterized by a self-reinforcing production of legislation on security, in its multiple dimensions, driven both by collective needs and by the widespread perception of security itself.
Such an assumption requires further in-depth analysis, if not a genuine semantic examination of the concept of security, aimed at understanding, where possible, its various nuances and its current balancing.
Starting from the literal meaning, security, in general and in its contemporary sense, may be defined as “the condition that renders and makes one feel free from danger, or that enables the prevention, elimination, or mitigation of harm, risks, difficulties, adverse events, and the like¹.”
It follows that this configuration assumes different meanings across various terminologies and interpretations, depending on the socio-political, cultural, semantic, and legal context.
From a historical-philosophical perspective, the concept of security has, over time, represented a parameter for assessing the “status” of an organized community. From its perceptual dimension, rooted in individual cognitive processes, security has at times constituted the “object of desire” of the individual and, at others, a tool for legitimizing rules, actions, and normative systems.
Completing this reconstruction, it is necessary to highlight the function of security as a “currency of exchange,” as articulated in Rousseau’s The Social Contract², in which the emergence of the State is traced back to the relinquishment of individual freedom in exchange for security, justice, and equality.
Within this framework, the notion of security emerges as an element that, moving beyond the mere concept of “security policy,” translates into the so-called “multilateral concept of security³,” namely the coordinated and global production of legal norms and jurisprudential orientations (ECHR, Constitutional Court, Court of Cassation, CJEU, ICJ).
According to a consolidated modus operandi, each demand for security is met by the State through an expansion of the scope of criminal relevance, intervening on the fourth element of the offence (according to the quadripartite theory), by increasing penalties and broadening sentencing frameworks.
The fluctuation in citizens’ perception of security depends not only on potential risk but also, within a system of criminal law centered on the act, on the concrete implementation and effectiveness of the measures adopted.
Thus, while security constitutes a primary guiding principle for the legislator, it also requires the State to achieve tangible results, including through long-term strategies. In this perspective, criminal deterrence represents one tool among many within a broader set of interventions.
The Concept of Security in the European Union
According to certain schools of thought, supranational legal systems represent a disruptive element in the proper implementation of security; others, conversely, argue that security cannot be guaranteed in the absence of social, labor, and educational policies.
Leaving aside these positions, it is not possible to analyze the level of security of a State without considering the globalized context and the so-called “normative network⁴,” in which legal experiences converge through the jurisprudence of international courts and European legislation.
At the European level, an indirect competence in criminal matters is now well established, in accordance with Article 5 TEU⁵, which assigns primary competence to the Member States.
Nevertheless, the European Union plays a significant role in the area of freedom, security, and justice, pursuant to Articles 3 and 4 TEU, through regulatory instruments and coordination policies.
This development forms part of a historical trajectory ranging from the Maastricht Treaty to the Lisbon Treaty, culminating in the full operational status of the Charter of Fundamental Rights of the European Union (CFREU).
Particular relevance is attributed to Article 49 CFREU, which, in line with Article 7 ECHR⁶, enshrines the principles of legality in criminal law and proportionality of penalties.
The scope of application of the Charter, defined by Article 51 CFREU, limits its operation to cases involving the implementation of Union law, thereby creating a “two-tier” system of protection in which EU law and the ECHR intersect.
This framework has raised critical issues, particularly with regard to the principle of equality, as highlighted in the Fransson case (C-617/10)⁷, in which the Court of Justice affirmed the applicability of fundamental rights whenever national legislation falls within the scope of Union law.
Conclusions
In contemporary society, the concept of security represents both the container and the content of a complex system of rules, which does not always fall entirely within the sphere of criminal law.
In its intrinsic and extrinsic dimensions, security takes on multiple forms—economic, social, personal—ultimately configuring itself as a collective value.
It requires a balance between rights and freedoms, between protection and responsibility, thereby constituting a foundational element of modern constitutional democracies.
However, it must not be used as a justification for violations of fundamental rights or for authoritarian drifts.
In this regard, the reflection of Albert Einstein⁸ remains relevant: human progress lies in the constant effort to overcome destructive instincts through intellect and cooperation.
NOTES
[1] From the TRECCANI Dictionary, see: https://www.treccani.it/enciclopedia/sicurezza/.
[2] Gabrielle Yriarte, The Social Contract by Jean-Jacques Rousseau (Book Analysis): Complete Analysis and Detailed Summary of the Work, MustRead Publisher, 2023.
[3] Carla Monteleone, Security Policies and Global Change, Franco Angeli Publisher, 2012, p. 48 et seq.
[4] V. Manes, The European Convention on Human Rights in the Italian Criminal Legal System, Giuffrè Publisher, 2011.
[5] Treaty on European Union, Article 5: “1. The delimitation of the Union’s competences is governed by the principle of conferral. The exercise of Union competences is governed by the principles of subsidiarity and proportionality. 2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.”
[6] European Convention on Human Rights, Article 7 (Nulla poena sine lege): “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognized by civilized nations.”
[7] Reconstruction of the facts (Case C-617/10): “Mr. Franz was a Danish fisherman who had failed to pay all the taxes owed to the relevant tax authority, which had ascertained the non-payment and initiated proceedings for the imposition of an administrative penalty. For the same conduct, Mr. Franz was also subjected to criminal proceedings for VAT fraud, exposing him to a second sanction. In these circumstances, Mr. Franz neither awaited the outcome of the proceedings nor brought a claim before the ECHR, but instead applied directly before the national court, alleging a violation of Article 50 of the Charter of Fundamental Rights and requesting a preliminary ruling. The Danish State and other Member States submitted observations before the Court of Justice of the European Union, arguing that the case did not fall within the scope of EU law, as no directive in criminal matters was involved. The Advocate General, however, maintained that the scope of EU law includes any matter connected to EU competences, interpreting the notion of scope in a broad sense. On this basis, the Court of Justice upheld the claim and acquitted Mr. Franz.”
[8] A. Einstein, The Aim of Human Existence, April 11, 1943.
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