Nummer 35-36 der „Blätter für Öffentliches Recht“ zum downloaden

Human dignity, according to certain studies, is constitutionalized in different ways, in almost four fifths of modern constitutions. However, despite this, the right to human dignity continues to be insufficiently utilized as a legal concept.

The existing experiences in the sphere of comparative law do not offer a clear concept of the right to human dignity. Often, its starting point is that human dignity encompasses the demand for equal treatment in all spheres of society. Despite the fact that the principle of equality, in other words prohibition of discrimination, is an integral segment of the right to human dignity, there is a broader constitutional concept in play here. An inseparable segment of human dignity is also the demand for respect of physical and psychological integrity, as a necessary supposition for the exercising of all human rights. In that respect, the right to human dignity also appears in the role of a subsidiary mechanism in the protection of physical and psychological integrity if such a need should arise in practice.

The content of human dignity is also established based on the demand for respect of individual autonomy. At the foundation of human dignity lies the necessity to recognize that people are human beings that evolve in accordance with their free will. The autonomy of individual volition involves the freedom for everyone to do as they please, whereby that freedom is limited exclusively by the same freedom of other individuals. Human dignity is founded on the thesis that people are self-aware, rational and moral beings, worthy of respect that are recognized the capacity to be the bearers of rights necessary for their protection. Hence, as a result of its complex character there is an increase in the standpoint by way of which human dignity amalgamates a series of other rights which make up a distinctive, complex entity whose protection is necessary for the purpose of conserving the autonomy of self-determination of people in all spheres of society. The violation of human dignity involves the negation of a person’s immanent values and their placement in a position of a means, in other words object with the aim of effectuating some other values and goals.

Every society has its own conceptualization of human dignity which continually changes and develops through time. The understanding of human dignity is largely dependent on multiple social factors, amongst them the most significant are history, tradition, culture and religion. Aside from the attempt to establish an abstract determination of human dignity, it is also necessary to understand this concept in actual practice of a concrete social community. The existence of such an extensible human right with unclear boundaries and undefined legal scope is of immeasurable significance in the protection of people from modern challenges of scientific and technological development. The development of science continually opens up bio-ethical questions, such as genetic engineering and cloning, thus the existence of a specific right to human dignity is one of the constitutional answers to unforeseen challenges in the future. However, the right to human dignity can also be an effective means of protection from subtle and concealed violations of fundamental rights by the state. As such, the right to human dignity can be marked as a sort of “framework right”, “mother right”, or “right of rights”.

These words lead to the conclusion that the development of the right to human dignity can be a reliable indicator regarding to what measure the principle of the rule of law has been effectuated in practices. Undoubtedly, the possibilities which are enabled by the right to human dignity are nowhere near utilized fully in the practice of the constitutional courts of the states in the region. Is that an indisputable marker that the state still have primacy in comparison with the people and their fundamental rights and freedoms?!

Darko Simović

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