To the Conception of the Man in the Czech Rule of Law
When considering the conception of the man in various law systems, it might be useful to pay attention to some a bit differing issues in the rule of law of the Czech Republic. I have not any needed information whether these issues are different also in other postsocialist countries.
Marxist theory was categorically refusing the natural law, should it have been derived from the God authority or from the Nature or from the human brain. On the whole it logically emphasised that any reference to the natural law (preceding to the positive law) would mean a subordination to another authority than that of the man: as a final consequence the subordination to the authority of the God was inadmissible for the marxism.
Therefore when under an international pressure the socialist state of that time was unable to refuse the General Declarationof Human Rights accepted by the UN General Assembly on December 10, 1948 and when it had not any other possibility than to ratify the Convention for theProtection of Human Rightsand Fundamental Freedomselaborated by the Council of Europe in 1950, then at any occasion it continued to emphasise that its decision was a sovereign one but that accepting these documents did not mean at all any recognition of the natural law that would be preceding to the positive law.
The development of this problem after the downfallof communism merits some interest.
Already in the post-revolutionary bustle in Czechoslovakia on January 9, 1991 a constitutional law was accepted proclaiming the Charter of fundamental rights and freedomsas well as the necessity to assure a harmonisation of the Czech laws with this document. The preamble already recognises the inviolabilityof natural rights of the man and of the citizens as well as the sovereignty of the law.
The Constitution of the Czech Republic accepted on December 16, 1992 has recognised again the Charter of fundamental rights and freedoms as an inseparable part of the constitutional legal order of the Czech Republic. In the preamble inviolable values of the human dignity are mentioned but the article 2 of the Constitution emphasises that the people is the source of all the authority in the state. From the Christian point of view certainly all authority is derived from the God. The original version of the Czechoslovakian Constitution from 1920 would be perhaps more acceptable when declaring the people as a spring of all the authority (silently admitting another primary source – the God). Obviously in 1992 nobody considered these formulation problems or at least no attention was paid to them.
In any case it can be appreciated as good that the Charter of fundamental rights and freedoms has been accepted and that it representsthe constitutional part of our legal order; after all many citizens claim it at the European Court.
The old proclamations declared as moral primarily what was directly serving to the working class and they also considered the law as the expression of the ruling class will. Presently in our society – described as one of the most atheistic in Europe – many approaches from the previous period continue in the style of the old proclamations. Nowadays they only rather replace former expressions „working class“ or „the will of the ruling class“ (by whatthe communist party was meant) by new terms such as „political will“.
Many examples of this old style approach could be presented. Let me describe just one of them: An enactment has been introduced into our Civil Law declaring that the enforcement of rights and obligations cannot be „in contradiction with good manners“ (contra bonos mores). In practice this enactment is not applied because the courts are considering it as a contradiction to the positive law they are applying. I myself was a witness when a court denying good manners explained it by the fact that nobody knew what these manners really were.
Therefore the recognition of human rights and the possibility to claim their protection are opening a possible way to finally recognise such a conception of the man where all his real dignity and freedom will be fully respected.
Dr Bedřich Vymětalík, Czech Republic