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The purpose of human rights from the point of view of the present and future Serbian constitutional law system

23.04.2014

More than half of the text of the 2006 Constitution deals with human rights. Ideally, guaranteed human rights in the supreme law of a political community affirm the principle of constitutional democracy, and/or are a direct expression of the position that relations within the community are based on equal freedoms of all its members.

A political community based on law rests on foundations of mutual recognition of its members as equals in their rights and freedoms. The main form of the act of recognition is part of the constitution because this document is the legal foundation of a political community.

For that purpose, the Constitution includes a set of provisions which guarantee rights and freedoms of the community members. Furthermore, the Constitution also contains provisions on organization of government, i.e. on bodies whose mandate is to ensure that human rights are protected and respected.

As opposed to that, a quest for alternative forms of government is connected with application of an entire set of exclusive principles which necessarily reflect the dominance relation between members of the political community in terms of law. This relation is inherent in the ruler’s will or in metaphysical God’s will, in natural law etc. This is how a political community in which some members are more equal than other is established.

Thus, belonging to the favored classes ensures an “excess of freedom” to those who share the same ethnic origin, nationality, language, skin color, social and economic position, who are members of the same political party or religious organization, who are of the same state of health, sex, sexual orientation, age etc. Other people, who do not belong to the favored classes, will face a “lack of freedom”.

These two basic types of political community coexist in modern reality. There is a number of states in which the system of constitutional democracy is well developed or is being developed. On the other hand, there are states...

 

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The Policy Brief was written as part of the project: “Awaiting a new Constitution”.

 

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