1. General questions of human rights
Elements
Origin of human rights
System of human rights
Restriction of human rights

2. 1. Elements 1.1. Human rights (Menschenrechte)
rights are due to people by virtue of human nature
the Republic of Hungary only recognizes and respects, but does NOT create
everyone has equal human rights
moral, enjoyment of rights, which are enforcable in legal way
moral rights being in Constitution <> moral requirements besides law (Waldron, Sajó); human claims, humanitarian efforts

3. 1.2. Fundamental rights(Grundrechte)
In constitutions
In international treaties enumerated rigths
1.3. Constitutional rights
Synonym of fundamental rights
+ non-human rights in Constitutions (rights of representatives)
1.4. Civil rights
Political rights of participation (for example suffrage)
Duties of citizens (for example military service)

4. 2. Origin of human rights 2.1. Tenet of natural law
Higher norms > natural, divine origin, eternal moral acts
Order defined by God > Aquinói Szent Tamás
Command of human mind > Hugo Grotius
State is based on contract > Hobbes: Leviatán
Social contract: defence of life, liberty, property > Locke: restricted government; Montesquieu: „power against power”
Priority of public purposes, „volonté generale” general will” > Rousseau
The end of the 18th century- the beginning of the 19th century: human rights=innate rights

5. 2.2.Utilitarianism Consequence-principled attitude
Natural rights = fiction which one can only believe in
Burke: „historical utilitarianism”
Bentham: „happiness of most people” <> Declaration: natural rights = „absurdity going on stilts”, no universality: dictate of western civilization
J.S. Mill: prevention of damage of another
Sajó András: we can get to verification of individual freedom > at long term it is going to be worse for everybody; public welfare precedes human rights; as many sociaty as many kinds of human rights > no universality

6. 2.3.Kantian legal philosophy
Moral basis
Kant: freedom is postulate of mind > categorical imperative: respect of human dignity; legal system is means of liberty
Ronald Dworkin: individual constitutional rights like strong rights > for their restriction public welfare is insufficient
Hart: at least one natural moral right: everbody has the equal right to be free
Feinberg: such a world where there’re human rights is safer and more fair

7. 3. System of human rights 3.1. Generations of human rights
First generation (18th century): freedom
Negative rights > civil rights
Personal (civil)
Political: rights of participation (direct, indirect, petition)
Second generation (19th century): equality
Positive rights > ECOSOC
Economic: right to labour, Trade Union, strike, property
Social: social security service, health service, right to home
Cultural: education, arts, science
Non-human rights > no moral basic
Aims of the state unforced before courts

8. Third generation (20th century): fraternity, solidarity
global problems
the people of developing world have the right to self-determination, development, share in common heritage
failure of states: peace, healthy environment, humanitarian aid
reproduction right: „rights of future generations”, information technology

9. 3.2. Groups of fundamental rights
In relation of state and individual:
Defensive rigths: status negativus (G. Jellinek)
state, feature, condition (life, corporal integrity, privacy, residence) of person
Legal position (property)
Activity (assembly, opinion)
Rights of participation: status activus
Political (direct, indirect)
In wider meaning: assembly, opinion, association + freedom of information

10. Service rights: status pozitivus
For real service> poverty minimum
Normative action > public service broadcasting, control of balance
In civil law relations> objective side of rights = institutional protection

11. 4. Restriction of human rights
Depends on the origin: utilitarianism <>moral (for example torture of terrorist)
4.1. Absolute rights
human treatment of person > prohibition of torture, slavery, forced labour
capital punishment: 1972, 1976 USA; 1990 Hungary
guaranties of criminal law > presumption of innocence, prohibition of retroactive justice in the criminal legislation
restriction in emergency situation

12. 4.2. Hierarchy of rights 4.3. Matters of form
US SC: freedom of expression
BVerfG: Menschenwürde
EJEB: right to life, freedom of expression
Constitutional Court of the Republic of Hungary:
1. Right to life and human dignity > DECISION 23/1990 AB
2. freedom of expression > DECISION 30/1992 AB
4.3. Matters of form
amendment of Constitution
regulation by Parliamentary acts

13. 4.5. The scope of restriction
4.4. Matters of contents
Aim:
Defence of rights of another
Institutional protection (abortion, state owned media)
Aims of states, „public interest”
4.5. The scope of restriction
US SC: pressing social need + proportionality
BVerfG: Verhältnismäßigkeit > suitability, necessity
Constitutional Court of the Republic of Hungary:
* proportionality-necessity > DECISION 2/1990 AB, DECISION 20/1990 AB
* more permissive test: rationality > freedom of contracting, property, discriminatio nof non-basic rights

14. Thank you for your attention!