Some Critical Reflections on the Broad Human Rights Constitutionalisation

Matijević, Milica V. (2021) Some Critical Reflections on the Broad Human Rights Constitutionalisation. In: Constitutio Lex superior: sećanje na profesora Pavla Nikolića. Institut za uporedno pravo, Beograd, pp. 155-172. ISBN 978-86-80186-72-6

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Abstract

In the last three decades, the broad constitutionalisation of human rights took place in the context of profound changes in the make-up of contemporary societies brought about by globalisation and rapid technological development. The paper approaches human rights constitutionalisation through the prism of these changes in an attempt to study the phenomenon at the more basic theoretical level. It does so by addressing certain doctrinal, ideological and structural considerations engendered by human rights constitutionalisation, which tend to be neglected by the normatively focused legal theory. Three broad themes have emerged in the course of this inquiry. The first one is about inflation of matters discussed in terms of individual, judicially enforceable human rights, which leads to the trivialisation of human rights and redefines the relationship between legal justice and social justice. Under the second one, the author examines the link between growing social fragmentation and the rights-based approach to distributional and other public matters. The third broad theme investigated in the paper concerns the tendency to conflate human rights and legal interests as a consequence of which human rights cease to be treated as a value per see and become an instrument for the realisation of other goals.

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