Ustavna norma kao bitak i trebanje
Constitutional Norms - What They Are and What They Have to Be

Author(s): Mirjana Nadaždin-Defterdarević
Subject(s): Social Sciences, Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Reality;Necessity/requirements;Reality and future prospects of the constitution;Human rights;Constituent nations;
Summary/Abstract: The constitution is always an expression of a certain ideology and politics, just like the law in general. Behind its norms there is interest of the ruling class, who wants to shape up sociopolitical reality in accordance with its needs. Legal norms, and especially constitutional ones, are effective means to do it. The constitution refers to the social reality, existence, and turns it in the desired direction, justifying it as common interest necessary to maintain values; hence this choice becomes a necessity. The reality and prospects of the constitution thus become a reflection of the reality and necessity. Their balanced and harmonious relationship contributes to the value of the constitution and facilitates the implementation of its norms. Current solutions of the Constitution of Bosnia and Herzegovina that came about as a result of coerced political compromises, mark a stark contrast between what there is and what ought to be. The makers of the Constitution underscore the value of human rights as one of the most important values. Although the choice of this principal value is well based and indisputable, it is important to put it in the relationship with the social reality as a fact and establish how much this value, embodied in a constitutional norm, is really in touch with the current social reality for which it was created. This question is particularly pertinent regarding the applicability of the norm, along with the concept of constituent nations; the latter concept receives strong political support, and thus it strongly marks both the reality and the requirements of the current Constitution. In the social reality of Bosnia and Herzegovina, therefore, there are two contrasting concepts that co-exist and compete, two opposing concepts/values – the concept of human rights, and the concept of constituent nations. The first one is a value and need merely declared by a constitutional norm, whereas the other one has evolved into the very essence of the state and the society in Bosnia and Herzegovina – it is the social reality, value and necessity. Insisting on the concept of constituent nations, while ignoring how obsolete it has become, and seeing more and more affirmations of how damaging it is and how important would be to change it, makes the constitutional solutions contradictory, their application difficult, endangers the prospects of their implementation in the future, and the declared concept of the protection of human rights, as a value and a necessity, in some instances becomes completely absurd.

• Details
• Contents