The necessity of further formation of the constitutional courts and ways of perfection of legal proceeding
The role of constitutional justice in strengthening constitutional legality. Protection of the constitutional rights, freedoms, formation of the specialized institute of judicial power. The removal of contradictions and blanks in the federal legislation.
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The necessity of further formation of the constitutional courts and ways of perfection of legal proceeding
The bodies of the constitutional justice begin to play the greater role in strengthening of the constitutional legality. Speaking about the federative state, it is necessary to mean the role of not only federal Constitutional Court but of the bodies of the constitutional justice created in the subjects of the federation. Their value in strengthening of the constitutional legality, protection of rights and freedoms has repeatedly been mentioned both by specialists and political figures. President of the Russian Federation V.V. Putin three years ago in the city of Rostov-on-Don at the conference in the South federal district specified on the necessity to lean in the work on the regional constitutional courts.
In different publications and speeches of many specialists there have been mentioned persuasive arguments for the benefit of formation of these bodies of justice. Let's show the most convincing of them.
Firstly, it is possible to apply for the status of state legal unit at presence of the valuable state power. Its absence gives grounds to foreign specialists and politicians to reproach Russia in absence of veritable federalism and lack of development of the system of bodies of government, called to protect rights and freedoms.
Secondly, for the protection of the constitution (charter), strengthening of the constitutional legality, protection of the constitutional rights and freedoms, formation of the specialized institute of judicial power is necessary.
Thirdly, the heads of the subjects of the Federation, at the absence of the specified bodies of judicial power are deprived of the lever of legal influence with the help of which they can effectively decide allocated on them by the constitution (charter) tasks on protection of the Fundamental law, rights and freedoms of a person and a citizen.
Fourthly, the subjects of the Russian Federation, voluntarily renouncing the powers given by the federal constitutional law, allowing them to have the valuable system of the government in accordance with bases of constitutional system of the Russian Federation, limit their possibilities to settle independently legal collisions and conflicts. According to President of the Russian Federation V.V. Putin, “it can be done solely by legal facilities and in the legal form”. Instead in such subjects the citizens and their associations, bodies of regional state and local power, for settling disputes under jurisdictions of the constitutional (charter) courts will apply to different political forces, thus forcing social and political situation in the society, or will apply to the federal bodies of power, including the Constitutional Court of the Russian Federation, considerably multiplying the volume of their work. Thus, absence of the possibility to remove all contradictions and blanks in issued laws and statutory legal acts at the place of residence and the necessity in each case to apply in the federal bodies of power for the verification of their legality will finally lead to forming of negative image of the subject of the Federation.
Therefore the actual task is the task of perfection of the legal regulation of activity of the constitutional (charter) courts, their mutual relations, with other courts including the status of judges.
Vagueness in differentiating of the powers between the constitutional (charter) courts and courts of general jurisdiction in questions of disputing statutory legal acts, imperfection of the legal regulation in deciding questions on co-operation of the given courts, the status of judges of the constitutional (charter) courts, of guarantees of their independence and safety resulted in the following: in the subjects of the Russian Federation there act statutory legal acts, limiting the guarantees of the status of judges of constitutional (charter) courts. There do not exist uniform norms of material and technical, financial and skilled support of activity of the specified judges. Numerous federal statutory acts, concerning the questions of organization and activity of courts and status of judges in the Russian Federation, quite often eliminate constitutional (charter) courts from the field of legal regulation. In fact it results in substantial collisions and contradictions.
In particular, the legislation of practically all subjects of the Russian Federation in which constitutional (charter) courts function, provides the right of all other courts to apply with request to the constitutional (charter) court about correspondence of the statutory legal act of subject to the constitution (charter) of the subject of the Russian Federation. Thus, Article 215 of the Procedural Code of the Russian Federation does not stipulate the duty of the court to stay proceedings on the case and Article 215 of the Procedural Code of the Russian Federation does not stipulate the terms of stay of proceedings. Moreover, the Procedural Code of the Russian Federation does not stipulate even the right of the court to stay the proceedings on the given ground (Article 216 of the Procedural Code of the Russian Federation). Actually the court of general jurisdiction, after application to the constitutional (charter) court continues proceeding and makes the decision on the ground of the law of the subject of the Russian Federation which afterwards can be recognized unconstitutional. In this case, on fully clear reasons, the decision of the court must be revised. We shall ask: whether it is reasonable to continue the proceedings on the case if the court of general jurisdiction can not make legal judgement before the decision-making by the constitutional (charter) court?
We think the decision of the problem lies in addition of Article 215 of the Procedural Code of the Russian Federation with one more ground at presence of which the court should be obliged to stay proceedings of the case: “applications of the court in the constitutional (charter) court of the subject of the Russian Federation at request concerning the correspondence of the law, subjected to application, to the constitution (charter) of the subject of the Russian Federation”. As a result, it is necessary to set the term of stay of proceedings of the case at presence of the offered ground - till making of the corresponding decision by the constitutional (charter) court of the subject of the Russian Federation - that also requires bringing of the addition in Article 217 of the Procedural Code of the Russian Federation.
More serious contradictions can arise at disputing of legality of one and the same statutory legal act of the subject of the Russian Federation simultaneously in the constitutional (charter) court and in the court of general jurisdiction. The current legislation allows the courts to admit the corresponding statements and to make judgment on the case, in spite of the fact that the similar case is already considered in another court. And what should be done if decisions appear opposite? We think, that in this case the question should be decided in strict correspondence with jurisdiction of courts.
The federal constitutional law “About the judicial system of the Russian Federation” in Part 1 Article 27 determined the powers of the constitutional (charter) courts of the subjects of the Russian Federation. Within the framework of the given powers the decision of the constitutional (charter) court is obligatory and it can not be revised in any other court (Part 4 Article 27). Proceeding from the given legislative positions courts can not consider statutory legal acts on the subjects of their constitutionality, if it relates to the jurisdiction of the constitutional (charter) courts. At the same time the constitutional (charter) courts can not interfere jurisdiction of courts of general jurisdiction.
Part 3 Article 251 of the Procedural Code of the Russian Federation stipulates that there are not subjected to consideration in court applications about disputing of statutory legal acts, verification of constitutionality of which relates to jurisdiction of the Constitutional Court of the Russian Federation. We consider it necessary to add the given norm with the indication to the constitutional (charter) court of the subject of the Russian Federation. The given addition will allow eliminating contradictions which can arise at disputing of one and the same statutory legal act of the subject of the Russian Federation simultaneously in the constitutional (charter) court and in the court of general jurisdiction. If verification of constitutionality of the statutory legal act relates to the jurisdiction of the constitutional (charter) court of the subject of the Russian Federation the application about disputing of the given act is not subjected to consideration in the court of general jurisdiction.
Some norms need adjustment for example the norms contained in Article 253 of the Procedural Code of the Russian Federation and Article 195 of the Arbitration Court of the Russian Federation regarding direction of the decision of court about disputing of the statutory legal act of the subject of the Russian Federation in the constitutional (charter) court of the subject of the Russian Federation. It is known, that positions of statutory legal acts of the subjects of the Russian Federation can be the subject for consideration not only of courts of general jurisdiction and arbitration courts (for their correspondence to the federal legislation) but also of the constitutional (charter) courts (on their constitutionality). We think that if the decision of the arbitration court or the court of general jurisdiction on the case about disputing of the statutory legal act touches the act of the subject of the Russian Federation, the copy of this decision should be in obligatory order directed to the constitutional (charter) court of the correspondent subject of the Russian Federation. It will allow to avoid appearance of another decision concerning one and the same statutory legal act that will promote stabilization of law enforcement practice providing of uniformity of judicial activities and will reduce possibility of application by courts of the statutory act, recognized by arbitration court or court of general jurisdiction lost force.
A number of problems arise at providing of order in sessions of the constitutional (charter) court and safety on the territory of the corresponding buildings. The fact is that the constitutional (charter) courts quite often consider questions causing large public resonance. The similar situation appeared as a result of non-distribution of the Federal Law “About bum-bailiffs” on the constitutional (charter) courts of the subjects of the Russian Federation. In accordance with Article 1 of the given law bum-bailiffs are allocated with the tasks on maintenance of the established order of activity of the Constitutional Court of the Russian Federation, of the Supreme Court of the Russian Federation, the Higher Arbitration Court of the Russian Federation, courts of general jurisdiction and arbitration courts. And who will maintain the established order of activity of the constitutional (charter) courts and what to do with the constitutional positions about the uniform judicial system of the Russian Federation?
Moreover, the judges of constitutional (charter) courts are not subjected to state protection (!) in accordance with the Federal Law “About state protection of judges”. Absence of Article 2 of the given law of the judges of constitutional (charter) courts among the persons, subjected to state protection, that contradicts statutory legal act of the greater legal force - Federal constitutional law “About the judicial system in the Russian Federation”, Article 12 of which establishes that all judges of the Russian Federation shall possess the uniform status and are different solely in powers and jurisdiction. The given position is specified in the Law of the Russian Federation “On the status of judges in the Russian Federation”: the judge, his family members and their property are under the special protection of the state. Bodies of internal affairs are obliged to take necessary measures on providing safety of judges, his family members, safety of the property belonging to him, if the proper statement made by the judge. The judge has the right to storage and wearing of official gun given out of him by the bodies of internal affairs on his statement in the order stipulated by the law of the Russian Federation “About Arms” (Part 2 Article 9). Guarantees of independence of the judge, including the measures of his legal protection, material and social welfare stipulated by the given law are distributed by all the judges in the Russian Federation and can not be abolished and reduced by other statutory acts of the Russian Federation and the subjects of the Russian Federation (Part 4 Article 9).
Thus, regarding providing state protection of judges in the Russian Federation there re obvious contradictions in the federal legislation to remove which it is possible by means of addition in the Federal Law “About state protection of judges” of the list of persons, subjected to state protection by judges of the constitutional (charter) courts of the Russian Federation.
It is necessary to make clarifications in the criminal procedural legislation of Russia. Article 448 of the Criminal Procedural Code of the Russian Federation establishes the special order of arising of the criminal case regarding the separate categories of persons, including judges. It is interesting to note that at arising the criminal case regarding the judge of the constitutional (charter) court of the subject of the Russian Federation there is applied the same order as regarding judges of district courts and courts of justice of the peace (item 5 Part 1 Article 448 of the Criminal Procedural Code of the Russian Federation).
The Constitution of the Russian Federation (Article 122, Part 1) proclaims inviolability of the judge as the principle proceeding from which there are settled the concrete questions of inviolability and responsibility of judges; the judge can not be drawn to the criminal responsibility otherwise in the order, determined by the federal law (Article 122, Part 2). According to the Constitutional Court of the Russian Federation, inviolability of judges is not the personal privilege of the citizen, holding the position of the judge, but is the means of protection of public interests, and foremost interests of justice. Proceeding from this the society and the state, producing rigorisms to the judge and his professional activity, have the right and is obliged to provide him with the additional guarantees of the proper administration of justice (the Resolution from March 7, 1996 on the case about the verification of constitutionality of item 3 Article 16 of the Law of the Russian Federation "About the status of judges in the Russian Federation").
As the judicial guarantee of inviolability of judges Chapter 52 of the Criminal Procedural Code of the Russian Federation was included with positions about the features of proceedings on criminal cases regarding judges, including the stage of arising the criminal case (items 3 - 5 Part One Article 448), stipulating the certain complication of the proper procedures, in order to provide legally the expedient differentiation of procedural mechanisms in the field of criminal responsibility.
From the sense of Part 1 Article 448 of the Criminal Procedural Code of the Russian Federation it is obvious, that for the basis of application of this or that order of arising the criminal case regarding different types of courts the territorial principle has been taken. The judges of courts, working on the entire territory of the Russian Federation or on the entire territory of the subject of the Russian Federation were subjected to one order of arising of the criminal case (item 4 Part 1 Article 448) while the judges of courts, working on the territory of district or judicial area - have been subjected to another order (item 5 Part 1 Article 448).
Judges of the constitutional (charter) courts of the subjects of the Russian Federation have not been subjected to any of them. Nevertheless they act on the entire territory of the corresponding subject of the Russian Federation, and their decisions contain legal positions, obligatory for all bodies of the government, bodies of local self-management, their officials, public associations and citizens. Moreover, the decisions of the constitutional (charter) courts of the subjects of the Russian Federation are subjected to frequent application, that is actually other norms of law, and the decision about interpretation of the Constitution have force of the constitutional norms.
Thus, regarding the judges of the constitutional (charter) courts it is more correct to apply such condition of arising of the criminal case, as the conclusion of board comprising three judges of the Supreme Court of the Russian Federation on presentation of the chairman of the Investigation Committee at the General prosecutor of the Russian Federation (item 4 Part One Article 448 of the Criminal Procedural Code of the Russian Federation), acting in the mechanism of providing of the institute of inviolability of judges of the constitutional (charter) courts as sufficient guarantee (along with the consent of the Higher qualifying board of judges of the Russian Federation) of their constitutional rights, including the right to remedy.
There should be clarified some positions of the Federal Law from October 6, 1999 No. 184-ФЗ “About general principles of organization of legislative (representative) and executive bodies of the government of the subjects of the Russian Federation”. Paragraph One Article 2 of the specified Law contains the list of bodies comprising, the system of bodies of the government of the subject of the Russian Federation. It is necessary to include the courts of the subjects of the Russian Federation in this list that will correspond to the federal model of construction of the system of public bodies of the government and the principle of division of powers at the level of the subject of the Russian Federation.
There is a number of blanks in the tax, budgetary legislation, and in other statutory legal acts of the federal level. As a result the established by the federal legislation unity of the status of judges in fact remains declaration.
The removal of contradictions and blanks in the federal legislation will promote perfection of the legal proceeding in the Russian Federation.
Section II. Contents and limits of freedom beginning from the 19th century the problem of freedom of a person has become one of the priorities in the study in the field of philosophy, sociology and, certainly, jurisprudence. Up to present the scientific thought has offered a number of varied concepts and definitions of freedom, hereunder only emphasizing the whole variety, variability and even historical condition of the given category. So, В. Gumbolidt considered that freedom presents, inherently, "only possibility to indefinitely varied activity"  when P.-A.Golbach considered that freedom is "the right of the individual to undertake for the sake of the happiness all that does not harm other co-citizens" . E.Fromm considered that freedom is the possibility of actions not within the framework of need, but on the basis of realization of alternatives and their consequences, as there does not exist anything that had not reasons, and not all actions in the world are determined. The beginning and the first manifestation of freedom of a person is his "independence", autonomy, "self management" of a personality - that Aristotle named "to belong to himself", but Gegel named as the possibility to behave at own understanding. Classical presentations about freedom, formulated by the thinkers of the New time, were added by the French sociologist, politologist and philosopher R.Aron in the 20th century with the understanding as possibility to be social mobile, as the right of each to free from "hutches of life", and to die in another role quality, different from which a person was originally born.
A.Shopengauer one of the first paid attention to aspectual variety of liberty, having subdivided it into three "subspecies": physical, intellectual and moral. E. Fromm and R.Hirau wrote about variety of freedom, specifically selecting herewith physical freedom of movement and mental freedom of human spontaneity. It is possible to speak about civil legal freedom, which frames are usually outlined by the law. There exist the notions of freedom of press, speech, worship, academic freedom and the other freedoms, which are not always saved from self-contradictions . For instance, according to Z.Bzhzinskiy,the notion of freedom more often correlates with determination of the good life, and if the society maximize the principle of individual satisfaction, the civil freedom in such society changes in absolut. And, Zh.-F. Revel differentiates social, individual and intellectual freedom .
Special attention should be paid to the pointed view expressed by the Russian philosopher С. Fedoseyev concerning levels of freedom. He distinguishes to external levels physical and legal and one internal level. In his opinion restriction of freedom at legal level can be of two types - prohibition and enforcement. Unlike physical level, all restrictions are suffered by the personality more sharply as they occur not from heartless nature, but from the personality, with whom it is possible not to agree. On the other hand, obstacles on the legal level are much more serious taking into consideration the threat of withdrawal to legal responsibility. The fact is that S. Fedoseyev absolutizes freedom of a person, recognizing its restriction even the criminal-legal prohibition of murder, therefore coming to actual justification of the extreme forms of voluntarism.
From the second half of the 19th century the difference between freedom in public and individual spheres became more evident. Under the influence of scientific and technical revolution the person appears to be all involved in public life; herewith "socialization " of a person quite often occurs on account of reducing of the sphere of private life. As a result there occur revolutionary changes in the individual and public consciousness: if earlier the people from generation to generation fought to be as much as possible involved in public (and first of all - in political) life, that their private life is enough protected ("my house is my fortress") under the new condition, with development of mass media, , TV- and radio broadcastings, computer technologies and connected with them "side" phenomena the person was compelled to begin the fight to be in sufficient degree secluded, barriered from the society. There has come the realization that really free it is possible to be only when you are free in the external, public, oriented on the society behaviour, as well as in internal, oriented on person world. Therefore - there have appeared the constitutional fixing of such liberties, as inviolability to private life (privacy), inviolability of premises, secret communication and etc.
Recognition of multi-conceptual of freedom dialectically generates the requirement of providing of its wholeness. So, P.Berger specified that the statement of unity and wholeness of freedom is the fundamental requirement, as restriction of freedom in one part of human existence certainly influences freedom in its other sides .
As a whole, the history of development of the idea of freedom is reduced to determination of the negative and positive sense (of aspect) of freedom. Both of the above mentioned aspects of freedom are clearly enough formulated by the English liberal of the 20th century I.BERLIN. In the negative sense "I am free in that degree, in which not a single person or no people interfere what I do. In this sense political freedom is only the space, in which I can without hindrances subject to my own occupation" . The positive freedom " results from desire to be a master to himself. I want that my life and my decisions would depend on me, but not on any external forces. It is necessary to consider himself thinking willing active person, having responsibility for the choice and be capable to motivate it, according to the own ideas and purposes. .
The difference of negative and positive freedom comes from different questions. The negative freedom is defined by the question: "Whether great is the space, within which space a person or a group of persons can do anything or to be such as he wants to be?" The positive freedom is defined by another question: "Where is the source of pressure or interference, that will make someone do what he wants?" The individual is positively free if controls himself; is negatively free if other persons do not interfere his affairs. The negative freedom of a person is as more, as less he is disturbed by other people and acts without interference of others.
At the same time, not all scientists agree with difference of negative and positive freedoms. For instance, John Mac'Coll qualifies freedom as the attitude, consisting of three elements instead of two: "If the question is freedom of a subject (subjects), it always is necessary to take into account freedom of certain requirements, restrictions, interference and barriers, allowing doing (not to do) this or that, to become (not to become) this or that. Freedom is always freedom of the subject (subjects) from this or that, for the purpose of these or those actions (inactions), for becoming (not becoming) this or that. Any saying about freedom must possess the form: "X is free (or not free) from Y for the sake of realization (not realization) of C", in which variable X means subjects, Y - requirements, restrictions, interference, barriers, but C - actions, characteristics of nature, circumstances" . In other words, freedom includes three elements. On this ground John Mac'Coll rejects the difference of " freedom from" and "freedom for", applied by I. Berlin. Any saying about freedom is thinking about freedom of X from Y for the sake of achievements С. A.L. Anisin agrees with position of John Mac'Coll. In his opinion, "freedom is realized within the framework of empirical living, but herewith it is the certain degree of freedom from the given world and freedom for realization of himself in this world" .
In response of critic of his positionsI. Berlin has recognized the insignificance of logical distance between the terms negative freedom and positive freedom. The fact is that actually it is difficult to make strict difference between the questions "Who is the master to himself?" and "In what volume he is the master?" Some authors agree with trinomial notion of freedom, others confirm: "Formula of John Mac'Coll does not take into account the whole contents of the notion of freedom" . The disputable question is whether I. Berlin has made distinction of notions or identified two types of concepts of freedom. As a whole it is possible to state that the problem of one, two or three notions of freedom still remains to be open for modern philosophy.
At the same time there is no doubt that the specified difference of two aspects of freedom reflects the difference, contrast of chances (the negative freedom) and abilities (facilities) of the individual to use them (the positive freedom): "A person is positively free if does what he wants, and is negatively free if nobody interferes his affairs " . D. Rolz distinguishes the negative freedom and value of the freedom: "Inability to enjoy their own rights and possibilities as a result of poverty and ignorance, as well as general defect of facilities, is sometimes included in the number of restrictions, determining freedom. I, however, won't confirm it; instead I shall consider that these things influence upon value of the freedom " . In the opinion of R. Gudin, " the consent with the concept of D. Rolz leads to the conclusion: chances (types of the negative freedom) and facilities (types of the positive freedom) should be recognized simultaneously specific, but equally important measurements of the freedom" .
The British philosopher Ch.Taylor emphasizes the conflict of the negative and positive freedom. The negative freedom is reduced to chances, the positive is reduced to their realization: "Existence of freedom is the question whether a person can do, what he wants, regardless of his actions for realization of the choice. Such understanding is inherent to the negative concepts of freedom of T. Gobbs and I. Bentam. The doctrine of the positive freedom is identical to the notion of realization since expresses the presentation: essence of the freedom is control and self-control. A person is free only in that measure, in which he successfully manages the form of his life" . Ch.Taylor proves the difference of negative and positive freedom as follows: "When using notions of chances hindrance of freedom are considered external barriers of the human action. Understanding the freedom as realization, we mean internal spiritual barriers. They also influence freedom since human motives, self-control and ability of determination of moral differences" .
The negative freedom is limited by external (physical and legal) and internal (when a person acts under influence of alcohol, drugs, fraud, manipulates) barrier. The internal barriers are false beliefs of the individual, which are introduced in him by the system of education and limit his freedom. If external hindrances are considered borders of the freedom, the notion chances are substituted by the notion of realization. It is necessary for eliminating internal barriers at realization of the freedom. For overcoming of external barriers it is necessary to act when for realization of freedom action is not required: "Overcoming of external barriers is connected with the action, but it does not mean that the given liberty is above chances of action" .
The analysis of the presented positions gives the possibility to make the following conclusion: the negative freedom is the ensemble of the chances of the individual; the difference of the negative (absence of the external barriers) and positive ( overcoming of internal barriers) of freedom is comparative, their correlation has the dialectical nature; the individual possesses the negative freedom at absence of internal and external barriers; these barriers are the product of human activity; the negative freedom is connected with conditions of the individual freedom.
The law is unable to regulate the positive freedom of a person; it can only determine its negative forming, indicating the concrete limits of the action of the free will of a person. At the same time, the positive law addresses to consciousness of the subjects of legal relations, indicating to them models of possible or due behaviour. It means that the legal regulation directly installs the frames of the negative freedom of a person and at the same time forms the necessary conditions for the person to feel free. The analysis of evolution of a freedom of a person shows the indicative unceasing expansion of borders of the negative freedom of a person, steady renewing of the list of the individual liberties (freedoms), and constant increase of possibilities for all-round development of the human individuality.
The suppressing majority of researchers keep to the point of view that subject of the freedom is the single individual. However there are expressed other opinions on this subject. In particular, the British philosopher G.Kohen defines the subject of freedom as relations between freedom and slavery: "Separate proletarian are free as they can abandon the rows of the proletariat. - Writes G.KOEN, - But it does not change their slave position since they can not collectively come out of the working class. Under the capitalist economy the social carrier can be achieved by any proletarian. But such chance can not be given to all as capitalism is impossible without mercenary labour. But it will disappear if majority of workers achieves social carrier" . And G. Cohen has formulated the following thesis about freedom in conditions of modern state-monopolistic capitalism: position of modern workers is similar to position of prisoners, from which only one has the chance of flight; all can not run away; therefore the modern worker class is collectively non-free and is total slave.
Other philosophers dispute the idea of collective subject of the freedom (slavery). "It is extremely surprising presentation, according to which all individuals have no freedom on all actions if it can be not realized by all simultaneously, - says John . Gray, - Of course, all can not simultaneously demand the unemployment benefit, to become fitters or professors of political philosophy. But it does not mean that we don't have freedom for such actions. " . Actually, identification of the potential possibility to behave in a certain way with real achievement of the desired result should be not enough correct.
In our opinion, the freedom of the individual should not be opposed to the freedom of collective subjects. Moreover: freedom of the group is possible only in condition of the freedom of each of its members. The people can not be free when alongside with the free there are not free persons dependent on the will of other persons. The collective can not be as free or not free, as the individual will. However herewith it is necessary to bear in mind that difficulty of forming of the uniform to be proportional to the amount of subjects forming it.
What can do the free subject what should be considered the barrier of the freedom? The most unambiguous answer is: "The individual is not free when actions of other individuals do not give him the possibility to realize any action. The individual is free if acts independently" . Threats and sanctions do not deprive anybody of the freedom as the individual can be responsible for his own actions. In fact, threats and sanctions are identical to chances: neither this, nor that reduces the freedom; in both events the obstacles modify desires, but not the possibility of the action.
Let's consider arguments in favour of such conclusion. Other subjects limit my freedom if they lower attractiveness of the certain behaviour. G. Steyner considers that if barriers limit the actions of the individual, freedom depends on desires and is the psychic condition, but not the physical fact. The barrier of the freedom as the physical fact means: "Borders of activity of the individual are directly proportional to the value of physical space and number of physical subjects, which he can use " . For instance, the prisoner is not free since his space and facilities are limited. But freedom of the rest of the individuals increases at imprisonment of the criminal. They use the physical space and subjects, inaccessible for the prisoner. Freedom is the constant value, which can be only redistributed, but not enlarged or reduced. Slavery of one person enlarges the freedom of the other: "The universal longing to the personal freedom is the game with zero result" . It's no use speaking about growing of the general amount of the freedom according to the social dynamics. The problem is in redistribution of the freedom.
G.Steyner defines the freedom as the physical fact, which does not depend on desires: "Action is reduced to mastering certain physical space and possessing certain material subject" . If the subject acts freely, physical elements of action belong only to him, but not to the other subjects. The subject is the owner and manager of the given physical space and the subjects. If to exclude action of the laws of physicists, the subject determines changes of subjects in the given space. He controls the given space and subjects if he can exclude the physical possibility of their seizure and use by other subjects.
The concept of G. Steyner reflects the practice of the primary individual (group) seizure of land and the further colonization of the territories. But the physicalist concept of the freedom does not take into account the influence of rights and laws on the freedom. If to agree with the idea of the redistribution of the freedom, the installed right is limited by the laws, which are not avoided by the physical barriers of the freedom.
However interference of other individuals influences the freedom since changes attractiveness of the certain actions. For example, F. Hayek considers the enforcement as the barrier of the freedom. According to F. Hayek, the term freedom describes the relations of people, the only infringement of which is the mutual enforcement. According to F. Hayek "whether the person is free or not depends on the range of the choice, but on the fact, whether he can hope to form his own mode of behavior in accordance with his own intentions, or whether someone else has the possibility to control circumstances in such way that the person will be compelled with the will to act on the other person, but not on his own will. The freedom provides that the individual has the certain guaranteed private sphere and that there is the certain set of circumstances in its ambience, in which nobody can interfere" . In the opinion of the given author, enforcement (instead of right and laws) limits the freedom; the freedom is independence on arbitrariness of the other person. At observance of the laws as general abstract rules, installed irrespective of the way of using, the individuals do not comply with the will of the other person and therefore they are free. The enforcement is the threat of making harm the person; if the law worsens the life of the people, there is no enforcements, there is the freedom.
In our opinion the concept of R. Nozik is quite interesting from the point of view of legal comprehension of the freedom. It is based on theory of human rights, according to which fair (corresponding to the law) actions do not violate the freedom . The main problem of the given concepts of the freedom is in its dependence on vague theory of human rights. Connection of the freedom with fairness deprives the notion of the freedom of the political contents: "Nozik considers the notion of the freedom as the moral category, supposing that only illegal actions can violate it. R. Nozik ignores the situations, under which poverty compels people to violate morality. He rejects the presentation, according to which the poor can not be free. The main sign of non freedom is the violation of rights, instead of absence of the choice" .
D. Miller has shown that ethics of the freedom does not deny its physical and social barriers. For instance, the freedom of a person does not decrease if there is the obstacle on his way though he can not go by the earlier determined way. The freedom is limited if barriers are created by other people. In this case a person is deprived of not only physical, but legal freedom of journey: "The major problem is on whom responsibility will be allocated. The answer is reduced to determination of barriers of the freedom. In fact, the question is the problem, decision of which can not be ethically neutral" .
The described approaches fix the undecided problems of building of non ambiguous concept of the freedom. Understanding of the freedom as absences of obstacle and qualification of the enforcement at the limit of the liberty leaves the opened question: what should be considered the enforcement? In this connection D. Rolz says: " the freedom is the certain structure of institutes the certain system of public rules, determining rights and duties. In this context the personalities are free to do something, when they are free from the certain restrictions to do this or not to do this, and when their doing or not doing is protected from the interference on the part of other personalities. If, for instance, we shall consider the freedom of religion as it is determined by the law, the individuals should have this main freedom, when they free to pursue their own moral, philosophical or religious interests without legal restrictions, requiring from them to deal or not to deal with any certain form of religious or any other activity, and when other individuals have the legal duty not to interfere them " .
Thus, the essence of the problem of the freedom is the detailed analysis of the correlation of the main rights and duties of the individual. Any references to negative, internal or positive freedom say nothing about of descriptive or statutory aspects of the freedom. Description supposes explanation of the ensemble of barriers of the freedom. The Individual possesses (does not possess) the freedom depending on abilities to overcome them. The statutory aspect is connected with the question: what should be considered the barrier? It is impossible to answer it without using argument and estimation from composition of different theories of the society and morality. Political ideologies offer different concepts of the freedom. But the majority defines the freedom as absence of obstacles.
Гумбольдт В. О пределах государственной деятельности. - М.: Социум, Три квадрата, 2013. - С.6.
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