Freedom as a constitutional category
Authors: LJUBIC DUBRAVKO 
Published: October 2021

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.