Ljudska prava: prilog analizi jednoga pojma
Human Rights: Contribution to the Analysis of a Concept

Summary/Abstract: Although our talk about human rights is part of the ethical awareness of contemporary politics, it still has not received adequate theoretical justification and foundation. Serious philosophical problems arose in the very beginning of the history of the “human rights” concept, with Locke’s liberal natural right and Kant’s reasonable right. According to the author, the difficulty stems from the concept of person, for in every liberal legal theory the person is perceived as bearer of human and fundamental rights. Meanwhile, the dominant constitutional theory of human and fundamental rights starts from the identical meanings of “person” as an individual, in its uniqueness, and of “man” as a general definition. It is, however, necessary to start from the fundamental difference between the two key concepts. While the “man” concept is defined universalistically, there is no universal concept for persons and no possibility of breaking them down into subcategories. While every individual, as instance of the concept, must be defined in the same way as everyone else, persons are defined individualistically; each person is a unique individual which can be neither duplicated nor multiplied. The author proposes a solution of the fundamental rights problem-matter within the framework of constitutional law. Personal rights are brought to existence as follows: organs of the state, in accordance with positive law, give to the individual the title of state-citizen as an individualistically unique legal person. Everyone receives it, in the same way, as a unique and irreplaceable person. In the normal conditions, the state has the obligation to make sure, via courts and the police, that everyone’s personal right is untouchable. On the basis of this logic, a demarcation line can be drawn between the personal fundamental rights and the collective rights of citizens (such as political rights, which the individual can practise only together with others). Only such an interpretation would provide our libertarian fundamental rights with a consistently secular character, with no concession to the internal attachment, in whichever way it may be concealed, to metaphysical or religious presuppositions.

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