Freedom as a constitutional category

Abstract

The history of mankind is a continuous struggle for the affirmation of man as an individual with an inviolable fundamental rights sphere, as opposed to the collectivity or some higher power. From the earliest days one had to ask and to win their autonomy, and they had to prove that they are beings with human dignity that deserve their physical and ethical individuality. The idea of the existence of the fundamental rights sphere is a legacy of the struggle against absolutism, and to respect the physical and mental integrity of every person and the protection of property rights. Fundamental rights in their implementation defend anyone to interfere with the protected sphere of the dignity of every human being. Their upgrade is formed by freedoms which authorize individuals to express their preferences and interests outside the existential sphere. Therefore, human rights and freedoms allow the individual not only to be a loyal citizen, but affect their environment and social organization, and thus affect the process of expanding personal freedoms. With constitutional affirmation of human rights and fundamental freedoms, a need emerged to define the content of these terms. In the literature, one can find a set of definitions that are more or less extensively trying to cover their ambiguity2. It is my opinion that in an attempt at defining the concepts of “human rights” and “fundamental freedoms” it is appropriate to start from the indications of their legal origin. The development of democratic societies to the current civilization level has enabled the codification of the fundamental rights sphere at the national and international level. The catalog of fundamental human rights and freedoms in principle is an integral part of the highest legal act of a country3, and sometimes constitutions point to the recognition of human rights and freedoms determined by international legal acts4. In attempting to define the observed concepts it seems justified to stress that fundamental human rights and freedoms belong to every individual, regardless of his personal characteristics and status and that those rights and freedoms affirm the individual as a human and social being. It is also necessary to point out that the declaration of fundamental human rights and freedoms in the highest legal acts of some social community commits the state government to refrain from interfering in the protected sphere. In conclusion, when defining the analyzed content it is necessary to note that human rights and freedoms in principle are not absolute categories. These are constitutional activities to be limited following the existence of the rights of another individual of the same content, or the rights of others, arising from the fact of living together. Following these settings the definition of content of concepts of “constitutional law” and “constitutional freedoms” would have its common and special part. Common components of those institutes are contained in the fact that this is the highest legal act of a society or by this act defined norm of international law, established inviolable autonomous sphere of each member of society, which enables them recognition as human and social beings and that they enjoy regardless of their status and other personal characteristics, protected from encroachment by any governmental body. In doing so, the concept of “constitutional rights” should be more linked to the protected goods that are immanent to a person as a human being and granted to them but by the very fact of existence. By contrast, constitutional freedoms would include a protected sphere of the individual in social contacts. Constitutional freedoms would be an institutionally protected sphere of the individual, as a result of his life in the community, which gives them a choice in social positioning and which can only be restricted by rights of another individual of the same content, or the rights of other people arising from the fact that they are living together.