ARE THERE COLLECTIVE RIGHTS? (PART TWO) Cover Image

ПОСТОЈЕ ЛИ КОЛЕКТИВНА ПРАВА? (II)
ARE THERE COLLECTIVE RIGHTS? (PART TWO)

Author(s): Miodrag Jovanović
Subject(s): Civil Law, Public Law, Politics and law
Published by: Правни факултет Универзитета у Београду
Keywords: Exercise of rights; Classes of subjects; Representation; Individual rights: Proportionality test;

Summary/Abstract: In an attempt to offer prolegomena for a comprehensive legal theory of collective rights, the author discusses several most important issues. First of them concerns the criteria for defining collective rights. The author advances the thesis that what primarily determines the nature of a collective right is not the way that right is exercised, but rather the character of the right-holder, i.e. collective, which is different both from natural and juristic persons. Furthermore, the author emphasizes that one should not confuse between collectives and narrow classes of subjects, whose legal status is determined by partly general legal norms. When it comes to the problem of representation, the author argues that a solution might be found in the creation, by an act of public law, of the special representative body of collective, which would be elected by members themselves, which, in turn, would lead to a more authentic representation of collective interests. Finally, the author allows the possibility that collective rights might sometimes override rights of the individual members of the collective, but he considers, first, that in a liberal-democratic society certain fundamental individual rights should never be infringed, and, second, that the restriction of other individual rights and liberties can be legitimate only if collective can prove it has a relevant compelling interest, and that the realization of this interest could not be achieved through less restrictive measures.

  • Issue Year: 56/2008
  • Issue No: 2
  • Page Range: 25-46
  • Page Count: 22
  • Language: Serbian