HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

most retained some socialistic ideas, which can be seen in the constitutional court decisions. 9 In this sense, the social rights of people are judged vastly differently, i.e.: “ In Hungary, on the other hand, human dignity does not serve as a basis for recognizing social rights. Rather, it served as the basis for questioning and reinterpreting the scope of social rights enacted under the Communist regime, allowing a switch to be made to a more economically liberal, individualistic conception of rights ”. 10 Communitarian Dignity The so-called communitarian dignity presents the other view. This dignity is based on the dignity of all rather than the individual 11 , and is notoriously and rigorously practised by the German constitutional court. 12 McCrudden states, that: “ In Germany, the Constitutional Court has held that human dignity means not only the individual dignity of the person but the dignity of man as a species. Dignity is therefore not at the disposal of the individual ”. 13 This view then justifies limiting certain other rights and puts dignity on a golden pedestal, as was stated before. Both the Omega case and the Wackenheim case clearly present this. The Issue There is a clear merit in understanding dignity from the perspective of the individual. The critics of the communitarian approach often regard it as paternalistic and inhibiting the person from waving their dignity, which paradoxically can be seen as against their dignity. Rao mentions that regarding the burqa ban in France, the debate focuses on the dignity of Muslim women, whose opinion is not at all taken into account. 14 Nussbaum then expresses this point even more: “Respecting their equal human dignity and equal human rights means giving them space to carry out their conscientious observances, even if we think that those are silly or even disgusting. 9 For example, the decision of the Czech Constitutional court Pl. ÚS 7/17 #1, 81/2018 Sb . 10 MCCRUDDEN, C. Human Dignity and Judicial Interpretation of Human Rights. In: European Journal of International Law [online]. Vol. 19, Iss. 4, p. 701 [cit. 2024-07-12]. Available at: https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=1281979. 11 OGUNBANJO, G. – KNAPP VAN BOGAERT, D. Communitarianism and Communitarian Bioethics. In: South African Family Practice [onlne]. Vol. 47, Iss. 10, p. 51 [cit. 2024-07-04].Available at: https:// journals.co.za/doi/abs/10.10520/EJC79704. 12 BVerfGE (German Federal Constitutional Court), 2 BvR 2347/15-, 2 BvR 651/16 -, 2 BvR 1261/16 -, 2 BvR 1593/16 -, 2 BvR 2354/16 -, 2 BvR 2527/16 - [online]. Judgment of the Second Senate of 26 February 2020. Paras. 1-343 [cit. 2024-07-04]. Available at: https://www.bverfg.de/e/ rs20200226_2bvr234715en. 13 MCCRUDDEN, C. Human Dignity and Judicial Interpretation of Human Rights. . In: European Journal of International Law [online]. Vol. 19, Iss. 4, p. 705 [cit. 2024-07-12]. Available at: https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=1281979. 14 RAO, N. Three Concepts of Dignity in Constitutional Law. In: Notre Dame Law Review [online]. Vol. 86, Iss. 1, p. 188 [cit. 2024-07-13]. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_ id=1838597.

23