DOCTRINE OF POSITIVE OBLIGATION OF THE STATE IN THE CONTEXT OF THE ESTABLISHMENT OF A WELFARE STATE
DOCTRINE OF POSITIVE OBLIGATION OF THE STATE IN THE CONTEXT OF THE ESTABLISHMENT OF A WELFARE STATE

Summary/Abstract: In the classical understanding, the dichotomy of negative and positive obligations highlighted significant differences between civil and political rights, on the one hand, and social, economic, and cultural rights, on the other. Both types of obligations – negative and positive – are interconnected and important for the full protection and realization of human rights. Negative obligations ensure the freedom and independence of citizens, while positive obligations contribute to the creation of economic and material support for the well-being of individuals. However, in the second half of the 20th century, a new approach began to emerge in the constitutional law of member countries of the Council of Europe, whereby positive obligations of the state extend to both types of rights – negative and positive. This approach reflects changes in society, where the role of law and the legal process becomes increasingly important, and more and more areas of social life are regulated by legislation. Thus, the classical idea of the negative obligation of the state not to interfere with the exercise of negative rights is gradually modified by the positive obligation of the state to ensure the proper realization and guarantee of rights, both negative and positive. This means that the state is not only required not to hinder the exercise of rights but also to actively act to ensure their realization. Therefore, the combination of negative and positive obligations in the sphere of human rights leads to a comprehensive legal duty of the state. This duty requires all branches of government to take appropriate, adequate, and sufficient material or procedural, legal or factual measures to protect human rights from violations that may be committed by both public and private entities, and to facilitate the realization of these rights. The limits of such duty are determined by the principles of proportionality, priorities, and the resources of the state. This means that the state must take into account the gravity of human rights violations, set priorities in fulfilling its obligations, and utilize available resources with maximum efficiency. The state is granted wide discretion in choosing the means to fulfill its obligations; however, these means must be appropriate and adequate to achieve the goal of protecting human rights. Therefore, the comprehensive legal duty of the state includes both negative obligations to refrain from human rights violations and positive obligations to act in order to ensure the protection and promotion of these rights.

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