Constitutional stipulation of freedom of a person

Citizenship is as the condition of possession the rights in the antique policy. The Roman jurisprudence about the place and role of the person in the society. Guarantees of the rights and duties of the citizens in the constitutions of states of the world.

Рубрика Государство и право
Вид реферат
Язык английский
Дата добавления 14.02.2015
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However the parallels with the Great French revolution in this parallel do not come to an end. The declaration of the rights of the worker and the exploited people subsequently has been included in the text of the Fundamental law of the Constitution of RSFSR from July 10, 1918 Such way of gradual transition from political declaring fundamental rights and freedoms to their legal stipulation and warranting at the level of the constitution has proved its efficiency in XIX century and the4refore has been apprehended during the socialist reorganization of the society in XX century. The first Soviet constitution has given citizens enough broad circle of democratic freedoms: the freedom of worship (Article 13), freedom of expression of opinions (Article 14), freedom of assemblies (Article 15), freedom of unions (Article 16 [97]). Thus in the Fundamental law 1918 there were neither clauses or restrictions concerning the listed rights and freedoms. But the fact is, that the rights and freedoms were admitted only for workers, and absence of clauses and restrictions concerning their realization "were fully compensated" by political and legal practice, especially in conditions of the civil war and struggle against interventionists.

The constitution of the USSR of 1924 did not specify the questions of bases of the legal status of the person, having concentrated on the organization of authority of the federative state. But already in the Constitution of the USSR of 1936 the whole chapter [98] was devoted to the fundamental rights s and duties of the citizens.

The new fundamental law contained the widest in the world for that moment list of the guaranteed rights and freedoms. We should specify, that the section began with declaration of the rights of the person, unknown to the constitutional law of the overwhelming majority of the leading countries of the West: the right to labour (Article 118), the right to rest (Article 119), the right to social maintenance (Article 120), the right to education (Article 121). As a matter of fact, the chapter about bases of the legal status of the person began with the unconditional achievement of the socialist organization of the society, - the rights which received the name of social and economic. The traditional list of the basic freedoms (of the person, worship, speech, press, assemblies and meetings, street processions and demonstrations, unions) for the first time in the domestic history was added by the right to inviolability of dwelling and secret of correspondence, that essentially expanded legal frameworks of the freedom of the person in the Soviet society. Besides the constitution of 1936 in comparison with the previous Soviet constitutions was added by the important legal guarantee of inviolability of the person: no one could be subjected to arrest otherwise on court the decision or on the sanction of the public prosecutor (Article 127). As a result even the bourgeois diplomats had to recognize, that this Constitution "makes the impression of most liberally painted document” and enables evidently to show to all the backlog in the given question of the western democracies [99].

Recognizing certainly innovative character of the Constitution of the USSR of 1936, at the same time it is necessary to remember that it was not created on an empty place. And we speak here not only about the previous experience of development and adoption of the Soviet constitutions, but about application of the best samples of West-European (and first of all - German) constitutionalism. In this case we should draw special attention to the Constitution of the German Empire (the Weimar constitution) from August 11, 1919. Part Two of the given constitution, fixing the fundamental rights and duties of the Germans, left far beyond the list of the subjective public rights [100]. There has been fixed the right to the freedom of movement down to opportunity to emigrate abroad (Articles 111-112), inviolability of the freedom of the person (Article 114), inviolability of the dwelling (Article 115), secret of correspondence (Article 117), freedom of expression of opinions (Article 118), freedom of assemblies (Article 123), freedom of the unions (Article 124), freedom of petitions (Article 126). The novels of the Weimar constitution became the declaration of the freedom of elections (Article 125), the right of communities to self-management (Article 127) and the freedom of occupation of public posts (Article 128). Thus, the freedom from especially personal sphere has been transferred to the political sphere, on all levels of public management.

As a matter of fact, the Mexican (1917), the German (1919) and the Soviet (1936) constitutions almost for half of the century have become the sample of the constitutional stipulation of the freedom of the person and warranting of its all-around development. Exactly these documents contained the widest list of the rights and freedoms of the person, put in the basis of the General declaration of human rights of 1948, the International pacts about human rights of 1966, and of the overwhelming majority of post-war constitutions (the so-called constitutions of the third generation).

At the same time, the second half of XX century has marked the new sides of the freedom of the person. On the one hand, there is fixed the freedom of not only separate person or the group of persons (class, corporation), but about the freedom of the whole people. In the constitutions of the separate states and in international-legal acts there is more and more mentioned the right of people to freedom and self-determination, to peaceful co-existence and development. On the other hand, the increasing attention of the world community to the freedom of the so-called small groups is observed: various sorts of minorities (national, language, sexual), socially vulnerable groups of the population (aged, invalids, lonely mothers, large families, etc.). The aspiration to provide freedom of each separately taken person in view of the own, unique needs and interests is more and more traced. Besides on the boundary of the XX and XXI centuries the processes of globalization and the newest discoveries have compelled the scientists and politicians once again to reconsider their views on essence and displays of the freedom of the person. More and more often they speak about the necessity of recognition for the person of such rights, as the right to corporal and genetic originality and connected with it interdiction to cloning and genetic updating of the person, the right to internal (spiritually-psychological) freedom and connected with it interdiction of psychological experiments on the person, etc.

In the given conditions there is often applied the thesis about unshakably extending limits of the freedom in the modern world, in our opinion, requires at least specification. The freedom of the person is not constantly extending galaxy; with development of the society needs of the person are complicated and supplemented with new sides, change of these needs is reflected in the legal matter in the form of new claims to the society, including in the form of new displays of the freedom. There is shown more and more full and all-round connection of the freedom of the person with the problem of development, with development of economic, moral, political, with development of both the separate person, and the whole society. The spiritual and moral value of the freedom for the society is becoming more and more clear. However together with occurrence of the new aspects of the freedom there objectively appear its new restrictions, called to protect the associates and the whole society from abusing the freedom. This is dialectics of the social development as a whole and the sphere of the freedom of the person is not the exception. In particular, the state is compelled to pay the significant attention to harmonization of privatism, solidarism, egalitarism. The task of the constitutionally legal theory and practice in the given conditions is to reveal operatively the happening changes and to react to them adequately, stimulating the displays of the freedom which are positive for development of the society (valid freedom), and stopping those containing the threat to existence of the society (imaginary freedom) and leading to its degradation.

The literature

1. Ильин А.В. Право // Основы государства и права: Учеб. пособие / Под ред.Н.И. Мацнева. - СПб.: Изд-во СПбГУ, 2006. - С.25.

2. Боголепов Н.П. Учебник истории римского права / Под ред. и с предисл.В.А. Томсинова. - М.: Зерцало, 2014. - С.126.

3. Трошкин Ю.В. Права человека: нарушение и защита прав человека и прессы: Учеб. пособие. - М.: РИО Упрполиграфиздата Моск. обл., 2007. - С.10.

4. Великая хартия вольностей 1215 г. // Памятники истории Англии ХI-XIII вв. / Пер. и введение Д.М. Петрушевского. - М., 1936. - С.106.

5. Градовский А.Д. Государственное право важнейших европейских держав // Градовский А.Д. Собр. cоч.: В 4 т. - Т.4. - СПб., 1900. - С.105.

6. Hurd R. C. A Treatise on the Right of Personal Liberty and on the Writ of Habeas Corpus, and the Practice Connected with it. - Second ed. - Albany, 1876. - P.130.

7. Дерюжинский В.Ф. HabeasCorpusAct и его приостановка по английскому праву. Очерк основных гарантий личной свободы в Англии и их временного ограничения. - Юрьев, 1895. - С.55.

8. Howard D. A. The Road from Runnymede: Magna Carta and Constitutionalism in America. - Charlottesville, 1968. - P.15.

9. Howard D. A. The Road from Runnymede: Magna Carta and Constitutionalism in America. - Charlottesville, 1968. - P. 20.

10. Еллинек Г. Общее учение о государстве. - СПб.: Юрид. центр Пресс, 2014. - С.402-403.

11. США: Конституция и права граждан / Под ред. И.А. Геевского. - М.: Мысль, 1987. - С.7-9.

12. Virginia Declaration of Rights // Resources for Teachers on The Bill of Rights / By John J. Patrick and Robert S. Leming. - ERIC, 2011. - P.57.

13. Declaration of Independence // Resources for Teachers on The Bill of Rights / By John J. Patrick and Robert S. Leming. - ERIC, 1991. - P.59.

14. Томас Джефферсон о демократии / Сост. и вступит. ст. С.К. Падовера; Ред.А.С. Турундаевский; Пер. с англ. М.Д. Маркина; Послесл. и комментарий В.Н. Плешакова. - СПб.: Рес Гумана; Лениздат, 1992. - С.18.

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