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The role of law in the self-realization of the individual is manifested, in particular: 1). in influencing consciousness and shaping the worldview of the individual; 2). in consolidation legal status personality and delineating the boundaries of free social activity, including through the provision of broad rights and freedoms; 3). in establishing a mechanism for protecting the interests of the individual; 4). in establishing the framework of free human behavior according to the principle “everything that is not prohibited by law is permitted,” as well as the means and methods by which a person achieves satisfaction of his rights and freedoms, permission various kinds conflicts and disputes; 5). in providing the individual with the opportunity to influence government bodies; 6). in maintaining a dynamic balance between the interests of the individual and the interests of society; 7). in consolidating procedures for the manifestation of personal initiatives; 8) in protecting the individual from the state itself, preventing interference in personal life (personal integrity).
Law regulates three spheres of interaction in civil society: between individual subjects - individuals (civil law); between collective entities - the church, public associations, etc. (constitutional, administrative law); between individual and collective subjects (for example, labor, family law).
The author considers the self-realization of an individual as certain legal opportunities to act in one way or another. In relation to the role of law in increasing the socio-legal activity of an individual, in our opinion, it should be analyzed from the standpoint of various types of legal understanding. Thus, considering law as a system of generally binding norms, it is possible to identify legal possibilities that are established and guaranteed by the state. For example, we are talking about the right to elect and be elected, in case of violation of what is protected by administrative and criminal law (positivist approach). From the point of view of the sociological approach, law is understood as social institution, suggesting the functional meaning of legal norms, i.e. how they are implemented. Civil society is the sphere of practical activities of individuals to satisfy their everyday interests and needs, rights and freedoms. Self-realization of a person is nothing more than certain legal actions, i.e. a specific process for resolving a specific problem. And finally, law as a measure of equality, freedom and justice (philosophical vision) leads to the fact that law is external freedom, determined by legislation and manifested in certain individual actions. As for justice, according to the American scientist J. Rose, there are two types of it: real and formal. If the first assumes that all social values should be equally distributed, then the second is the rule of law and the fulfillment of acceptable expectations. And in this case, real and formal justice coincide17. From the point of view of civil society, justice should be understood as both the rationality and validity of the current legislation and its compliance with social realities, as well as the strict adherence to the law by everyone. All of the above approaches lead to one thing - civil society is a society of equal legal opportunities, i.e. opportunities to enjoy one or another benefit.
Although the Constitution of the Russian Federation18 does not mention civil society, however, almost all articles of Ch. 1 and 2 establish the basic provisions that characterize the essence of civil society and allow us to separate the sphere of action of civil society and the state. They talk about the rights and freedoms of the individual, the recognition of man and his natural, inalienable, inalienable rights and freedoms as the highest value, the state protection of rights and freedoms, including political ones, and also draw a clear distinction between human rights and the rights of a citizen. In addition, the current constitutional legislation of almost all countries, including Russia, makes it possible to clearly define the constitutional foundations of the economic, social, spiritual, cultural and political spheres of the functioning of civil society19.
The author of the dissertation analyzes the features of the current legislation regulating the activities of civil society institutions, noting, in particular, that it concerns a wide range of activities of democratic institutions and affects various interests of the population, and there is also poor awareness of the population about their main provisions, especially in the localities. At the same time, we have to admit that the main idea embodied in the Russian Constitution - a person and his rights as the highest value - today remains quite fictitious and difficult to achieve. The purpose of law in civil society is to ensure the social activity of citizens, on the one hand, by providing them with broad rights and freedoms, and on the other, by establishing a mechanism for protecting (in particular, judicial) human interests. And the higher the normative and regulatory significance of law in real relations, the more confident we can say that society is truly free and open.
To understand the role of law in civil society, in stimulating individual activity, it is necessary to keep in mind that law is not only legal regulations, but also a complex of psychological ideas and emotions. The main thing is that political and legal activity (as well as other activities) is carried out not only with the help of law, but also within the scope of law. And no less important is that it is the right that is recognized to affirm and protect human dignity in society. Law in civil society is both a measure of freedom, and a measure of justice, and proper behavior, as it is seen by the state and society, and specific behavior manifested in the process of realizing personal subjective rights and responsibilities. By regulating social relations, law passes through the consciousness of the individual, receiving a positive or negative assessment from the point of view of the value and necessity of a specific legal regulation in the interests of the individual himself, his family or society and the state. Depending on this, the individual exercises or does not exercise his subjective right by entering into specific legal relations. In civil society, the main purpose of law is not only that law is a universal regulator of social relations (this is an axiom), but also an instrument leading to the coordination of the interests of different people and social strata, i.e. to a certain extent unity and cooperation.
The dissertation author comes to the conclusion that law, by providing rights and freedom of choice, makes the process of a person acquiring the quality of an autonomous personality irreversible. Law, to a certain extent, serves as the background against which the daily life of an individual takes place, for law influences the social activity of an individual, his socialization, regardless of whether the individual himself strives for this or not. Law is objective in nature and its impact on social relations is refracted through the prism of individual and social consciousness. Law is always a form of expression of agreed upon general interests, which gives it a real character and determines its leading role among all normative regulators of social relations. This allows the law to ensure the unity of the entire regulatory system.
Speaking about the personal aspect of law, it should also be emphasized that the value of law lies in the fact that it builds a normative barrier not only against private arbitrariness, “but also against attempts to forcefully make people happy and forcefully improve themselves. Law is the fundamental antithesis of paternalism”20.
Thus, law in civil society performs the following functions: cognitive and educational, i.e. preparing new generations to perceive legal values; regulatory-stabilizing, mitigating contradictions and other social tensions in society; integrative-communication, uniting people and aimed simultaneously at ensuring equality of opportunity in the absence of actual equality (which is impossible in any society) and socialization of the individual by informing individuals about social (political and legal) values; control-imperative, aimed at maintaining expedient and proper behavior of individuals and the functioning of civil society institutions by implementing external (encouragement, restriction, coercion) and internal control (role perceptions, adaptation, socialization).
Chapter two« Personality and civil society“is dedicated to an individual who, in civil society, declares himself to be an autonomous and free being, as a creator of material, spiritual, political and other values.
In the first paragraph« Personality– core value of civil society“the place and role of the individual in civil society is considered, it is emphasized that the individual always acts as both a subject and an object of social relations. The “quality” of society depends on its activity and, conversely, society presupposes the “quality” of the individual himself, because without it the existence of social interaction and certain social institutions is impossible.
Unlike nature, where unconscious forces operate, in civil society the ball is ruled by a person, an individual, the owner of private interests and needs, for the satisfaction of which he is endowed with the ability to consciously act, pragmatically solve economic, political and other problems together with other people.
IN modern science personality is viewed from different perspectives. There is also a vision of personality in the legal literature. At the same time, we can highlight what is common in all definitions of personality. It boils down to the fact that personality is an integral concept that includes the characteristics of a person as a specific individual with the entire totality of his social qualities and relationships formed in the process of his interaction with other individuals. A person in civil society exists as an autonomous person, however, along with individual characteristics, the person absorbs the features of subjective and group experience.
Analysis of the main issues in this paragraph allowed us to draw the following conclusions:
1. The individual’s need for self-realization - a natural universal quality of the individual - presupposes the disclosure of versatile human abilities in the process of socialization of the individual. This is achieved through a person’s awareness of his individuality and at the same time a certain adaptation to the surrounding reality. And depending on how a person has assimilated “social experience”, how much it corresponds to his life interests and attitudes, how a person’s personal safety is ensured, the person becomes aware of his individual significance and need. From a behavioral point of view, this is free will, a manifestation of self-regulation of the individual, which characterizes the internal individuality of a person, his self-realization in different areas of activity.
2. In civil society, a person, having and realizing his individuality, showing his will, nevertheless always acts within certain limits that meet the requirements of civil society, its value-normative rules (standards). Here, a huge role is played by internal regulators, which also have proper temporary stability - mores, customs, traditions, morality and behavioral stereotypes. A person’s behavior largely depends on the assessment given to him by others, by one or another social institution. Considering personality as the basis and main value civil society, it is necessary to emphasize the connection between the individual and the collective. On the one side. each person is individual and perceives himself as an independent person, and on the other hand, society gives rise to certain guidelines, requirements based on the laws of goodness, beauty, etc., which are expressed in social, including legal, norms.
3. Civil society promotes the free realization of the individual and its priority, which gives rise to a special type of personality - the individual, for whom the main thing is freedom “as the equal freedom of everyone (equal - within a certain circle of the free)”21. Legal socialization presupposes the subordination of freedom and individuality to the norms of law. To a certain extent, this causes unification of behavior and adherence to appropriate stereotypes. But this is only at first glance. In reality, an individual always strives, although it does not always work out that way, to form his own “I”, capable of independently acting and making decisions, without violating generally accepted rules of behavior and, first of all, legal norms.
4. In civil society there is a constant and, one might say, continuous process of simultaneous isolation of a person and at the same time interaction and cohesion of people in the process of their joint life activities. The social connections into which a person enters are of a repetitive nature. It is important for a person to satisfy a wide variety of interests and needs, including political ones. It is in this case that the dependent attitude of the individual towards society and the state is overcome and an attitude towards political participation is developed. And a person not only becomes the “smith of his own happiness” in material, spiritual and other ways, but also does not separate his interest from the interest of society.
A person in civil society, regardless of the scope of activity, is capable of determining the living space of his activities, and at the same time, of creating organizational forms, such as commercial organizations, public associations. This does not mean that everyone should be involved in business or be a member of a party or other association. Legal freedom is the basis for the self-organization of civil society and determines the nature of its interaction with the individual. We are talking about fairly specific subjective rights and legal obligations, i.e. about the general equal legal status of the individual. This gives the individual the basis for realizing his individuality and determining his place in society.
Civil society can only be a society in which an individual has real, including legal, guarantees of his normal existence, including the opportunity to participate in politics. In other words, a person should always and everywhere be the target of socio-political processes taking place in society and the state and aimed largely at ensuring his personal safety.
5.. The declaration in the Constitution of the Russian Federation (Article 7) of a person as the highest value, as it were, transfers this concept from the moral category to the legal plane and makes a serious application for the formation of civil society in Russia. Recognition of a person, his rights and freedoms as the highest value significantly changes the nature of interaction between the individual and the state. This is expressed in the fact that the “freedom” of the individual in the state, in accordance with the formula “freedom is the right to do everything that is permitted by the state,” becomes a thing of the past in relation to citizens. While in relation to government bodies and officials, this formula becomes determining their legal competence. It is being replaced by the understanding that “human freedom is the right to do everything that is not prohibited by law.” The state is proclaimed as an instrument for ensuring a decent life and protecting the rights and freedoms of each individual, while previously the good of the state was the goal for which a person worked and acted. As for modern Russia, this is still a programmatic position. This recognition clearly leads to the distinction between civil society and the state. A person is given the opportunity to show and realize his individual interest in the most various fields vital activity of society and the state, which is the key to personal success and the engine of social progress.
The peculiarity of civil society is also that it is characterized by equality of legal opportunities, but by no means actual equality, i.e. equality of results, including legal ones. Personal freedom in itself does not lead to the formation of a civil society. Personal freedom means only the opportunity to act in one’s purely personal (private) interests, but at the same time it also gives rise to the obligation to refrain from any actions that violate the interests of other persons (passive form of behavior) and these restrictions are not an infringement of freedom.
But most importantly, we are not talking about a state that has received the name “freedom from...” in the scientific literature, but about an active principle in human behavior aimed at the active realization of one’s rights and interests in accordance with the legal formula “freedom for...” (leaving aside internal “state of freedom”). Freedom is the basis of the constitutional order of society. And this freedom is expressed in the fact that, being sufficiently autonomous in relation to society and the state, the individual has the ability to interact with other people to achieve common goals, including subordinating his will to the requirements contained in legal regulations, because this promises one or another benefit for him.
Second paragraph« The concept and content of legal freedom of the individual"reveals the essence of legal freedom, which is the basis for the self-organization of civil society and determines the nature of its interaction with the individual.
The concept of freedom significantly expands the manifestation of personal self-determination both in the sphere of individual (private) and public life, because it is impossible to separate one from the other - the individual from the collective. The achievement of the public good, and, consequently, freedom in society, is achieved through the freedom of each of its members and vice versa.
Indeed, freedom is when “people are free to the extent of their equality and equal to the extent of their freedom”22. This means that the scope of legal freedom has been and is being affirmed as the principle of formal legal equality (equality in rights) is universally recognized, since law is an “equal measure” of behavior. Gradually, in consciousness and in real life, a person’s liberation from personal dependence occurred and continues to occur. However, of course, neither before nor today is “absolute” independence of one person from another possible. Take, for example, the relationship between employer and employee, manager and ordinary employee. But, again, this “unfreedom” is of a legal nature, since its measure is provided for by the rules of law.
V.V. SUBOCHEV, Candidate of Legal Sciences, Head of the Department of State Legal Disciplines, Pyatigorsk State Technological University I.G. SERDYUKOVA, Deputy Dean of the Law Faculty of Pyatigorsk State Technological University The most important priority of Russia’s international legal policy, helping to increase the authority and full rights of our country in international relations, advocates ensuring human rights and legitimate interests. Representing the most important general social values, this current guideline refers to general priorities, i.e., common to all types of legal policy, including international legal policy. This guideline must be classified as a permanent priority that remains relevant regardless of the circumstances at any time.
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V.V. SUBOCHEV,
Candidate of Legal Sciences, Head of the Department of State Legal Disciplines, Pyatigorsk State Technological University
I.G. SERDIUKOVA,
Deputy Dean of the Law Faculty of Pyatigorsk State Technological University
The most important priority of Russia's international legal policy, which helps to increase the authority and full rights of our country in international relations, is ensuring human rights and legitimate interests. Representing the most important general social values, this current guideline refers to general priorities, i.e., common to all types of legal policy, including international legal policy. This guideline must be classified as a permanent priority that remains relevant regardless of the circumstances at any time.
Law, performing a regulatory function, influences people's behavior, realizing the stimulating and limiting potential of normative regulations. Legal incentives and restrictions affect the interests of subjects of legal relations. The effectiveness of legal regulation, in turn, directly depends on interest, since the more adequate the legal norms (the closer they are to the interests of the participants in legal relations), the higher the effectiveness of legal influence.
Interest as such can have two forms of its mediation in forms recognized by the state that guarantee its satisfaction and method of implementation - subjective rights and legitimate interests. Moreover, legitimate interests are not only a phrase that determines the presence of certain interests in the subject of legal relations that do not contradict the law, otherwise the phrase “legitimate interests are a form of expression of interests” would look illiterately constructed. Legitimate interests represent a special legal means that expresses not only the interests of citizens themselves, but also the degree of their mediation in an established form guaranteed by law, claiming a certain degree of protection.
Subjective rights and legitimate interests have the following common features:
· involve the satisfaction of the subject’s own interests. They act as a unique way of their implementation, while having a single goal - to satisfy interests and needs that do not contradict the national ones. Subjective rights and legitimate interests - two forms of legal mediation of social interests and their protection - focus on a combination of personal and public interests;
· have a dispositive character and are within the scope of what is permitted. Their implementation is lawful behavior and is associated with such a form of realization of rights as use;
· are an effective way to manage and influence social processes and legal relations between various subjects. By endowing some individuals with rights (and therefore others with specific responsibilities) or promoting the implementation of existing legitimate interests, the mechanism of legal regulation achieves its goal by influencing the totality of social connections;
· based on the law. Objectively existing law cannot contain illegal elements or desires;
· mediate almost all spheres of social life. And if there are any aspects that are not reflected in subjective rights, legitimate interests penetrate into this area;
· complement each other and depend on each other. Legitimate interests are largely derived from existing rights, while subjective rights are either generated by the “typing” of legitimate interests or contribute to their proper and effective implementation, being the basis for their implementation;
· enjoy recognition and protection from the state. The degree of protection of rights and legitimate interests varies, but subjective rights and legitimate interests are an integral part of the legal status of an individual.
The main difference between subjective rights and legitimate interests is what they represent, as was very accurately noted by A.V. Malko, various legal permissions. “The first represent a complex permissibility, elevated by the legislator to the rank of a legal possibility. Subjective right is a permissibility of the highest category and, in fact, is valued not so much for its permissibility as for its possibility, and necessarily a legal one. Thanks to this, subjective rights as legal possibilities are provided by the specific legal necessity (obligation) of other persons.
If legal permissibility does not have or does not need the legally necessary behavior of other persons as a certain legal means of its provision, then this permissibility is simple and is not elevated by the legislator to a special legal possibility.”
There are other differences between legitimate interests and subjective rights, in particular:
· legitimate interest is not fixed by a rule of law, but, unlike subjective law, corresponds to it. A rule of law can protect and consolidate the existence of the legitimate interests themselves as a whole, but not each legitimate interest separately. Hence the different degrees of guarantee of these institutions;
· if the subjective right is of an individually defined nature (the holder of the right, the counterparty, all the main attributes of behavior are known - its measure, type, volume, limits in time and space, etc.), then the legitimate interest, without being mainly reflected in legislation, not provided for by specific legal regulations;
· both subjective right and legitimate interest are ways to satisfy the interests of subjects of legal relations. However, these methods of possessing the desired good are on qualitatively different planes: the first is more guaranteed, the second is more widespread; the first corresponds to a legally secured possibility, on the side of the second - only non-prohibition and a combination of certain factors and circumstances contributing to the probable protection of the latter;
· both are ways, forms of their implementation.
The implementation of interests recognized by the state as significant, as well as enshrined in the form of subjective rights, depends on the desires and intentions of the subject of legal relations, his knowledge of his rights and obligations. Here there is, as it were, cooperation between the state and the subject of legal relations on the basis of the unhindered implementation of the rights granted to a person.
Legitimate interests have an “evidential” form of implementation, when in order to implement the latter, the subject of legal relations must, firstly, substantiate the legality and legality of their interests and the requirements put forward in accordance with them, and secondly, be able to find protection that can come from the competent authorities if they recognize the significance and legitimacy of the claims put forward by the subject, and take advantage of it.
Insufficient knowledge of laws and a low level of legal culture often do not allow one to distinguish legitimate interests from subjective rights. Subjects of legal relations, depending on the circumstances, tend to see specific situation instead of their legitimate interests, subjective rights and unreasonably defend them, referring to a normative act that “does not correspond” to the case. The situation may be the opposite, when subjective rights are not fully used, thinking that the existing interest is not fixed in law.
The need to ensure human rights and legitimate interests is reflected not only in constitutional provisions, but also in international agreements binding on Russia, which indicates their paramount importance. Thus, according to the Constitution of the Russian Federation, the rights and freedoms of man and citizen are recognized and guaranteed in accordance with the generally recognized principles and norms of international law and the Constitution of the Russian Federation (Part 1, Article 17). Man, his rights and freedoms are declared the highest value (Article 2). In accordance with international treaties of Russia, everyone is guaranteed international legal protection of his rights and freedoms by granting the right to appeal to interstate bodies if all available domestic remedies have been exhausted (Part 3 of Article 46).
Among the interstate bodies carrying out human rights functions, the UN Human Rights Committee and other UN convention bodies, the European Court of Human Rights should be highlighted. By concluding international agreements, the state voluntarily renounces part of its sovereign rights in the field of regulation of human rights and transfers them to international bodies, which are thus empowered to “interfere” in its internal affairs, which is confirmed in Art. 79 of the Constitution of the Russian Federation. At the same time, a condition must be observed under which such participation cannot contradict the foundations of the constitutional system of Russia and result in a restriction of the rights and freedoms of man and citizen.
The currently emerging model of “concession of part of state sovereignty for the purpose of optimal implementation of human rights” is finding increasing support and justification among legal scholars. So, V.A. Kartashkin notes the inevitability of limiting the sovereignty of states and narrowing the boundaries of their internal jurisdiction; in the modern world, this inevitability is combined with the voluntary establishment of the limits of such restrictions by the states themselves. V.S. Nersesyants, also positively assessing the current trend, proposes to interpret it not as a limitation of state sovereignty in favor of supranational structures, but as one of the adequate and proper forms of exercising their powers (in compliance with the requirements of the principle of formal equality of states as subjects of international law) within the framework of the legal concept state sovereignty.
It is possible for a state to carry out an effective international legal policy while maintaining its independence, but in our case we are talking about delegating a certain part of sovereignty to international structures on a voluntary basis in order to
optimal provision of human rights and legitimate interests as the most important universal human values. Being the prerogative of a specific state, international legal policy in the field of human rights can be fully implemented, finding support in the principles and norms of fundamental international legal agreements, which not only contain recommendations to states, but also impose specific requirements on them legal obligations to ensure and protect human rights. Thus, the principle of universal respect for human rights, first proclaimed in the UN Charter of 1945, obliges states at the universal level to respect fundamental rights and freedoms. In development of the provisions of the UN Charter, the Universal Declaration of Human Rights of 1948, the international covenants on civil and political rights of 1966 and on economic, social and cultural rights of 1966 were adopted. In them, the protection of human rights is considered one of the fundamental principles of international law, which forced states “not only to respect and comply with human rights, but also to strive for the effectiveness of recognition and observance of the latter, to take care of the approval of effective and promising means of protection, to strive to develop human rights, to realize their versatility."
Along with universal agreements in the field of ensuring and protecting human rights, international legal documents adopted by states at the regional level have acquired particular significance. Among them is the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. By ratifying this document in 1998, Russia thereby recognized the jurisdiction of the European Court of Human Rights, which carries out control activities to protect human and civil rights, and the binding nature of its decisions.
Among the most important acts of “self-restraint” of state power, a special role is played not only by the constitution, but also by international legal agreements developed through the active interaction of various states. The latter independently set the limits of restrictions, referring specific issues of intrastate relations to the sphere of international legal regulation. Ensuring human rights is the area most susceptible to the influence of supranational principles and at the same time serving as a guarantee of maintaining state sovereignty. It is human rights that act as the point of intersection between the national interests of states and the interests of the international community. Only a strong, effective state is capable of protecting the inviolable rights and freedoms of its citizens. At the same time, a state that defends democratic values and guarantees human rights ensures sustainable peaceful development for the international community.
Ensuring and protecting human rights and legitimate interests must be based on harmoniously coordinated and interdependent three levels - national, regional and universal. The state, as the main subject of international legal policy, acts as a conductor not only of its own interests, but also of the interests of its citizens, which must be taken into account as much as possible.
Strongly expressed interests Russian citizens are as follows:
· in the fullest realization of their rights and freedoms, as enshrined both in the Constitution of the Russian Federation and in international agreements recognized as binding on Russia;
· in dynamically improving the quality, standard and life expectancy;
· in creating a reliable mechanism for ensuring and protecting human rights and freedoms, including through appeals to interstate bodies.
Ensuring these interests is one of the most pressing tasks of Russia's international legal policy, aimed at creating a national system of guarantees, complemented by a complex of universal and regional international legal guarantees.
Human rights represent a planetary value, and therefore are subject to assessment and protection in accordance with the standards, principles, and norms developed by the world community. Ensuring and protecting human rights and legitimate interests at the universal level is carried out through international legal measures developed by states, which consist in the consideration by international control bodies of reports of states on the fulfillment of their obligations, the implementation of the protection of human rights by international officials, consideration of complaints, petitions, appeals of individual individuals, groups for violations of their rights, etc.
The obligation to submit reports arises for a state if it is a party to an international agreement in which this obligation is enshrined. Thus, Russia, as a party to the international covenants on civil and political rights and on economic, social and cultural rights, is obliged to submit reports on the measures it has taken to implement the powers of subjects guaranteed by these international acts. If in order to exercise civil and political rights it is enough to refrain from state interference in the sphere of personal freedom and create conditions for the participation of citizens in political life, then in order to guarantee the proclaimed economic and social rights, it is necessary to conduct comprehensive organizational and economic activities and create appropriate social programs. The main purpose of reporting is to understand the degree of implementation of human rights in accordance with the concluded agreement, that is, to determine the positive dynamics achieved along this path. A state party to the pact chooses such measures to help ensure the obligations assumed, which are consistent with its resources in a specific period of time. Despite the mandatory nature of the provisions of the pact, its full implementation depends on the potential of the state and its capabilities.
The functions of monitoring compliance with international treaties are performed by UN convention bodies (committees on human rights, the elimination of racial discrimination, against torture, etc.), which consider reports from states on the progress of fulfilling their international obligations, as well as interstate and individual complaints. The powers of the committees do not imply any coercive measures in relation to
states; committees make only general or specific recommendations.
Currently, monitoring activities are far from perfect and “the system of monitoring bodies in the field of human rights created by the UN is extremely cumbersome, there is duplication and parallelism in its work, consideration of numerous issues on the agenda from year to year is postponed to subsequent sessions. These bodies work mainly from session to session and are not capable of taking emergency measures in the face of major crises. Therefore, in recent years, issues of expanding the powers of international universal and regional bodies have been widely discussed in the UN and regional organizations.”
The purpose of the control mechanism is not to coerce or impose sanctions on states for failure to fulfill their obligations, but to control the implementation of the provisions of international agreements. Thus, “one of the main tasks of control bodies is to provide assistance and assistance to states in fulfilling their international obligations by making appropriate decisions and recommendations.”
International law is initially conciliatory in nature. However, due to the dispositive principles of the existing legal regulation, some states do not fulfill their international obligations to ensure and protect human rights and neglect the recommendations of the convention bodies. At the same time, it is quite difficult to guarantee that the expansion of the powers of universal bodies will not lead to even greater abuses, but under the guise of a control mechanism that has “supranational” power.
Among the international legal measures to ensure human rights obligations, it is necessary to note the implementation of their protection by international officials. A similar function is assigned to the UN High Commissioner for Refugees and the UN High Commissioner for Human Rights.
In 1992, Russia, having acceded to the 1951 Convention relating to the Status of Refugees and its Protocol, undertook to assist the Office of the United Nations High Commissioner for Refugees (UNHCR) in fulfilling the functions of monitoring the application of the provisions of the Convention relating to the Status of Refugees and its Protocol. . For these purposes, Russia is obliged to provide UNHCR with the requested information regarding the situation of refugees, as well as laws, regulations and other acts on refugees that have entered into force. In accordance with the Agreement between the Government of the Russian Federation and the Office of the United Nations High Commissioner for Refugees in 1992, a UNHCR office was opened in Russia, the conditions for its cooperation with the Government of the Russian Federation were determined, as well as the possibilities for effectively carrying out the functions of providing international protection and humanitarian assistance to refugees.
Consideration of complaints, petitions and appeals by international bodies is another international legal measure developed by states to protect human rights and legitimate interests at the universal level. The right to petition arises in cases where the state whose citizen has expressed a desire to file a petition undertakes an international obligation to recognize the competence of the relevant international body authorized to consider it.
The implementation of the right of Russian citizens enshrined in the Constitution of the Russian Federation to appeal to interstate bodies for the protection of human rights and freedoms requires compliance with constitutional provisions on the exhaustion of domestic remedies and the presence of a corresponding international treaty ratified by Russia. These conditions, along with others, collectively constitute the admissibility conditions necessary for the international organization to accept individual communications from citizens for consideration. The only international body authorized to consider individual complaints without any conditions is the UN Commission on Human Rights. It accepts letters under the so-called 1503 procedure, under which any person or group of people can file a complaint with the UN, even if their case is not covered by the treaty.
The ability of an individual to file a complaint with the UN in connection with a violation of a right protected by a UN treaty is provided for by three international instruments - the International Convention on the Elimination of All Forms of Racial Discrimination of 1965, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the International Covenant on Civil and Political Rights.
Only in 1991 did Russia recognize the jurisdiction of UN bodies for the protection of human rights and freedoms by acceding to the Optional Protocol to the International Covenant on Civil and Political Rights, which regulates personal appeals to the UN Human Rights Committee. The Committee is authorized to receive communications (petitions) from individuals testifying to violations of their rights enshrined in the Covenant. The consideration of individual petitions under the Optional Protocol goes through two main stages: 1) determination of the admissibility of the communication and 2) development of the Committee's Views on the merits. After considering all submissions, the Committee forwards its views to the State and person concerned.
Unfortunately, there is no obligation on the part of sovereign states to implement such recommendations, since individual petitions to international non-judicial bodies do not generally involve legally binding decisions. The UN Human Rights Committee does not have the ability to force a government to change its policies; it is only authorized to include its opinion in the annual open report of the UN General Assembly, which is also a measure to promote the protection of citizens' rights. Persuasion is the only method available to the UN that promotes progress in the field of human rights, as a result of which all procedures for the protection of human rights and freedoms are aimed at concentrating all its power on the government of the relevant state.
Along with the established system of universal cooperation in the field of human rights within the UN, such activities are carried out on the basis of regional agreements, which also contain a mechanism for considering individual complaints. Regional cooperation complements various forms and methods of universal cooperation, and in some respects more effectively protects fundamental human rights and freedoms. Thus, by joining the Council of Europe, new states not only accede to the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, but also make the necessary changes to their legislation arising from case law created by decisions of the European Court of Human Rights.
The significance of the Convention for the Protection of Human Rights and Fundamental Freedoms lies not so much in the consolidation of rights and freedoms, but in the mechanism for considering individual and group complaints. In essence, this mechanism is supranational: its decisions, unlike the recommendations of the UN convention bodies, are binding on the participating states. Citizens of Russia have the opportunity to choose from a variety of procedures and organizations within the Council of Europe to which to contact if their rights and freedoms are violated.
A successful solution to the problem of human rights guarantees is impossible without an effective national mechanism for their provision and protection. This means that concern for human rights should not be completely delegated to international organizations, since the lack of effective domestic protection is a serious obstacle to the comprehensive provision of individual interests. At the same time, the inclusion of European human rights standards in the Russian legal system increases the degree of responsibility of the state, and the national legal mechanism is significantly supplemented by the international one.
The Constitution of the Russian Federation enshrined almost the entire range of human rights and freedoms contained in the Universal Declaration of Human Rights and the Covenants on Human Rights, and took on their natural character. Unfortunately, our country’s recognition of the basic principles and standards of the world community in the humanitarian sphere and the constitutional proclamation of rights and freedoms as the highest value did not automatically solve the problems relating to their effective implementation.
Formally, Russia has created all the necessary prerequisites for ensuring and protecting human rights and freedoms. The Constitution of the Russian Federation and laws are in force, the judicial system, legislative bodies and executive power are functioning, the Commissioner for Human Rights in the Russian Federation operates, and the Council for Promoting the Development of Civil Society and Human Rights has been created. However, the situation that has developed in the sphere of ensuring human rights and legitimate interests remains quite complex, which actualizes the comments that Russia “is far from ensuring human rights with the minimum standards by the presence of which today we judge the satisfactory state of affairs with human rights”, “significantly lags behind developed democratic states in improving the mechanism of legal protection of the constitutional rights and freedoms of citizens,” as a result of which “we have to admit the low efficiency of legal protection of individuals on a scale Russian society and the lack of a systematic approach to this important matter.”
Russian legal policy is receptive to the idea of human rights as its own constitutionally prescribed priority. Nevertheless, “the turn of legal life, and at the same time social, economic, political life along the axis of human rights requires special targeted activity on the part of the state towards the creation of an adequate, harmonious infrastructure, which is a condition for the fact that human rights are not so much a completed chapter , how many pages have yet to be started.” Of course, effectiveness in the implementation of legal policy in the field of protection of human rights and freedoms is possible subject to systematic, stable activity of the legislative and judicial systems, state, municipal, law enforcement agencies, and public associations3. The development of the emerging human rights protection mechanism in Russia largely depends on the internal desire of the authorities to work for people and focus on partnership with them.
Today, it is necessary to be conditioned by legislation, principles of natural law, legal culture, consciousness, needs and interests. active position the personality itself. Meanwhile, the legal culture of the country requires qualitative changes in respect of the individual on the part of the state.
The need for a social orientation of the state is reflected not only in the Constitution of the Russian Federation, but also in the most important international legal documents (Article 25 of the Universal Declaration of Human Rights, Article 11 of the International Covenant on Economic, Social and Cultural Rights, European Social Charter of 1996, etc. ). The norms of international legal agreements “do not regulate the observance of rights in national states, but, being fixed in constitutional provisions, create a vector for such observance.” Human rights are ultimately ensured by constitutional guarantees.
It is still difficult to say that every person is sufficiently provided with social guarantees, but the latest state construction indicates positive changes. National projects are emerging aimed at improving public health, supporting motherhood and childhood, and ensuring affordable housing for Russian citizens.
The full realization by an individual of constitutional rights and freedoms can largely be a consequence of Russia’s active policy in this area, aimed at strengthening the unity of constitutional, legal and international legal guarantees and their optimal interaction. After all, it is rights and freedoms and their content that are connected into a single value thread general process reforming Russian society, state and legal policy as an effective, productive way to implement positive changes.
Bibliography
1 For more information about this, see: Subochev V.V. Legitimate interests in the mechanism of legal regulation. - M., 2007.
2 See: Malko A.V. Political and legal life of Russia: current problems. - M., 2000. P. 141.
3 Malko A.V. Legitimate interests of Soviet citizens: Author's abstract. dis. ...cand. legal Sci. - Saratov, 1985. P. 70-71.
4 Shugurov M.V. International legal policy in the field of human rights: main directions and priorities // Philosophical and legal thought. 2004. Issue. 7/8. P. 74.
5 See: Kartashkin V.A. International protection of human rights and the processes of globalization // Human rights and the processes of globalization of the modern world / Responsible. ed. E.A. Lukasheva. - M., 2005. P. 291.
6 See: Nersesyants V.S. Processes of universalization of law and state in a globalizing world // State and law. 2005. No. 5. P. 46.
7 Shugurov M.V. International legal policy in the field of human rights... P. 45.
8 See: Mordovets A.S. Socio-legal mechanism for ensuring human and civil rights (theoretical and legal research): Abstract of thesis. dis. ... Doctor of Law. Sci. - Saratov, 1997. P. 4.
9 Kartashkin V.A. Human rights and the development of interstate relations in the 21st century. // Human rights: results of the century, trends, prospects / Rep. ed. E.A. Lukasheva. - M., 2002. S. 194-195.
10 Ibid. P. 192.
11 See: Glotov S.A. Constitutional and legal problems of cooperation between Russia and the Council of Europe in the field of human rights. - Saratov, 1999. P. 144-268.
12 Shugurov M.V. Human rights, Russian legal policy and international cooperation // Philosophical and legal thought. 2003. Vol. 5. P. 40.
13 Lebedev V.A. Constitutional and legal protection and defense of human and civil rights and freedoms in Russia (theory and practice of our time). - M., 2005. P. 245.
14 Rybakov O.Yu. Personality. Rights and freedoms. Legal policy. - M., 2004. P. 4.
15 Shugurov M.V. Human rights, Russian legal policy and international cooperation. P. 33.
16 See: Rybakov O.Yu. Decree. op. S. 4.
17 See ibid. S. 5.
18 Shugurov M.V. International legal policy in the field of human rights... P. 77.
19 See: Rybakov O.Yu. Decree. op. S. 5.
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O664 Orlova, O. V. (Olga Viktorovna).
Law and self-realization of the individual in civil society:
Abstract of the dissertation for the scientific degree of doctor
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- Law and self-realization of the individual in civil society.
Orlova, O. V.Orlova, O. V.
Law and self-realization of the individual in civil society: Abstract of a dissertation for the degree of Doctor of LawGENERAL DESCRIPTION OF WORK
Relevance of the research topic. Personality and its freedom are an eternal problem. Each historical era has made its own contribution to resolving the issue of the relationship between the individual and society along the path of recognizing man as the “measure of all things”, and his freedom as the ability to think and act in accordance with his interests, on the basis of honor, dignity, equality and justice.
In modern conditions, the interaction between society and the individual is becoming more complex. The individual increasingly acts as an active subject of social management, as a creator of material, spiritual and other values.
In turn, civil society presupposes the recognition and protection of human rights and freedoms, creates conditions for self-determination and self-realization, for the formation of an individual as a full and responsible member of the community, an active and conscious participant in the political process.
The relevance of the topic of the dissertation research is connected primarily with the fact that outside society there can be no socialization of the individual (moral, political, legal, etc.) and its adaptation to the surrounding socio-political reality. At the same time, it is the individual who has a decisive influence on the functioning of various social institutions, and ultimately society as a whole.
The mutual influence of man and society on each other has always existed, starting from the pre-state period. At the same time, at a certain stage in the development of social life, a special form of human society arose, which in science received the name “civil society.” This category presupposes the emergence of a person who recognizes himself as an independent and active person, endowed with certain rights and freedom.
women, the opportunity to independently and responsibly participate in one form or another in the life of society and the state.
In the middle of the 20th century. interest in the idea of civil society has faded somewhat. In the literature, especially sociological, and primarily Western, quite often there is a statement that the very concept of “civil society” in modern conditions is outdated, and therefore we should talk about society, social relations, sociality, etc. Moreover, it has become “fashionable” to deny the existence of society as such.
Remarkable in this regard is the statement of E. Gellner: “In recent decades, we have witnessed the birth (or revival) of the ideal of civil society. Previously, the concept of civil society was of interest only to historians of philosophy interested, for example, in Locke or Hegel. It did not cause a wide resonance, did not awaken a lively response. On the contrary, it seemed that this concept was covered with dust. And suddenly it was pulled out almost from oblivion, cleaned and turned into a shining emblem, polished to a shine.” However, the concept of "civil society" was revived mainly by politics, and then to a lesser extent by science.
Indeed, at the end of the 80s of the last century, interest in this idea gradually increased, which is associated with the transition to information society, the development of various forms of social activity and democracy, the expansion of globalization processes.
Of course, the original concept of civil society, interpreted as “the struggle of all against all,” has sunk into oblivion. Today, civil society is a product of the natural development of humanity, which is characterized by a special character of economic, spiritual, moral conditions of life; it promotes the free implementation of not only private, but also public
ny interests of individuals. However, achieving these interests is possible only in the process of maintaining relationships of individuals with other members of society, which are built on the basis of equality, freedom and justice.
Civil society is a self-organizing system of behavior and interaction of people with each other, connected by common interests, activities, national and cultural traditions, economic characteristics and, not least, moral, religious and legal values. At the same time, civil society is constantly developing, connections and relationships between people and their various associations and organizations are expanding. We should not forget that there is no civil society at all. Each country has its own “own” civil society. But there is something in common that allows us to define civil society as a system of life activity different personalities, the sphere of personal freedom, limited only by certain social norms (and primarily moral and legal). In addition, civil society is characterized by the coexistence of the pragmatic and the irrational, the natural and the random, which manifests itself through the activities of individuals in the process of exercising their subjective rights and legal obligations, interests and talents.
All of the above confirms the relevance of the research topic chosen by the dissertation author.
The prevailing opinion that the individual is increasingly alienated from the state and society, as if withdrawing into his own “little world” alone with the TV and computer and does not participate in the life of society, is, of course, not without reason. But it seems that the essence of civil society is not that people constantly interact with each other in various forms (whether they want it or not), but that the individual is responsible for choosing his own behavior under the protection of law. And the state has no right to interfere in a person’s private life, unless he commits any offenses.
The purpose of civil society is to reconcile society, connect private and general interests, and mediate between the individual and state power.
As is known, personality is an integrative concept that is formed in the process of human activity, which is based on certain internal qualities, making the individual the creator not only of his own destiny or the destiny of his family (which is important), but also of the team and society as a whole. A person in civil society does not dissolve in it, but, on the contrary, is an active builder of it, both directly and through public and other associations operating in a particular society.
This determines the relevance of studying the value of the individual and civil society, their interpenetration and interaction. Despite the fact that over the past 10-15 years many works have been published in which civil society is considered in various aspects, nevertheless, they contrast the state and public principles. Moreover, something negative is associated with the state, i.e. totalitarian, and with civil society - the democratic flourishing of human existence. Unfortunately, there is a persistent myth that it is enough to form a civil society (society of co-owners) in Russia, where the state will play the role of a “night watchman,” and “paradise” will come on Earth.
Today, the idea of forming a civil society underlies the progressive development of the modern Russian state, since it is civil society that is able to provide social, political, legal and moral conditions for a stable and safe human life, necessary for the realization of the individual’s abilities and his activity in all spheres of life. However, the state does not remain aloof from solving these problems and, through its bodies, must guarantee the implementation and protection of human rights and freedoms.
Irreversible changes have taken place in post-totalitarian Russia, although it is too early to say that there is a civil society in the country. However, given the purpose of civil society, which is that it “reduces the tension between the state, local social groups and individuals, which inevitably arises as public space expands and social differentiation deepens,” and at the same time promotes the self-realization of the individual, analysis of various forms of manifestation of individual activity is of particular interest.
The existence of the individual in civil society is one of the pressing problems of our time. The mechanisms of civil society operate in such a way that, due to self-regulation and self-organization, it is ready to resist destruction, eliminate social tension and thereby contribute to the stability of the development of social relations. Moreover, with the help of civil society it is possible to develop personal interests in the state.
The viability of civil society largely depends on the socio-psychological component, which consists of both social desires and expectations that have developed spontaneously to a certain extent, as well as social consciousness, ideas about the place and relationships between the individual and civil society, public institutions and civil society. All together, this determines the readiness for active activity of both the individual and civil society in general, and its individual institutions in particular.
The problem of the relationship between the individual and civil society is closely related to the implementation of the legal status of the individual, because human rights and responsibilities are a necessary condition and a normative form of interaction between people in civil society. Because of this, one of the most important tasks of the modern stage of the formation of civil society is the implementation in practice of the priority of human rights and the real recognition of the self-valuable
the dignity of each individual person. At the heart of this process is the idea of individual freedom, understood as the ability for an individual to choose the line of his behavior, including in the political sphere, and, of course, within the framework outlined by law.
The dissertation research examines a set of problems relating to the role and place of the individual in civil society, including in terms of the possibility and reality of citizen participation in the activities of civil society institutions. At the same time, both the influence of the individual on the formation and development of civil society and the role of civil society in the socialization and self-realization of the individual are analyzed.
The relevance of the problem of interaction between civil society and the individual is due to the need to achieve optimal combination freedom, equality, justice, human rights, his responsibilities, balance between the state and civil society. It is through the institutions of civil society and with the help of law that human freedom and self-realization are achievable. Moreover, the formation of civil society is the main way to implement the provisions enshrined in Art. 1 of the Constitution of the Russian Federation, i.e. building a democratic rule of law state in Russia.
Law, as is known, is a form of social communication that incorporates moral, political and other social norms, a significant part of which forms its basis. Most people do not know the laws, but are guided in their behavior by the customs, morals, habits, etc. existing in society.
At the same time, the “usefulness” of an individual’s behavior permeates not only individual activity, but also all social relations and underlies one of the most important spheres of public life - law.
In the overwhelming majority of scientific works, law is considered from the point of view of power, coercion, and its relationship with statehood. In this dissertation, an attempt was made to analyze
to analyze the role of law in the formation of civil society using the example of modern Russia, and also to trace how the right influences the self-realization of the individual in civil society.
The peculiarity of law is that it expresses public-individual, universal interest and is closely connected, in particular, with such concepts as “freedom”, “equality”, “cooperation”, “compromise”, “solidarity”, “order” etc. All these concepts, to a greater or lesser extent, express the goal setting of the operation of law in civil society.
The relevance of the topic chosen by the dissertation author is also due to the fact that law, influencing the consciousness and will of a person, is aimed at achieving a certain result, i.e. to ensure organization and order. This largely depends on a person’s activity in a particular social field. And at the same time, it is the law that provides specific opportunities for a person to realize his individual abilities, to satisfy material, spiritual and political interests.
The main emphasis in analyzing the problem of the relationship between the individual and civil society is placed on its political and legal aspects. Moreover, the research covers a fairly wide range of areas.
Speaking about the role of the individual in civil society, we must not forget about the problems of globalization, because everything that forms the basis of civil society - the creation of the necessary conditions for satisfying the comprehensive interests of a person, the development of his physical and spiritual strength - is important not only for individual countries, but also of humanity as a whole. Moreover, a large-scale solution to global problems today is a “chance” for the survival and progress of human civilization. However, as history shows, it is impossible to introduce democracy from the outside, because it is impossible to forcefully
to force a person to be free. In addition, the process of formation of civil society is endless.
The development of modern information technologies and communication tools, including the Internet, contributes to the solution of various social, economic, cultural problems and makes any society more open, and also significantly expands connections between the state and civil society, and contributes to the increased participation of individuals and certain groups of the population in the management process.
Increasing public awareness, including in the field of rights and freedoms of citizens, undoubtedly leads to increased legal protection of the individual. Possessing information, a person uses it to understand himself, to achieve either his own or more socially significant interests. And at the same time, the “information society” persistently brings to the fore the problem of whether scientific and technological progress will turn a person into a kind of “robot”, unable to think, self-realize, or be active in various spheres of life of society and the state.
And here a huge role belongs to civil society as a self-regulating system.
The degree of scientific development of the problem. Issues of relations between civil society and the individual are in the center of attention of philosophers, political scientists, and sociologists. There are well-established problems for lawyers: the relationship between state and society, the distinction between the political state and non-political civil society, human rights and civil rights.
The problem of the place and role of the individual in society and the state has always been of interest to legal scholars. However, in recent years there has been an increase in interest in the issue of the relationship between the individual, law, state and society. Moreover, the latter, as a rule, is understood as civil society.
The idea of freedom and equality of the individual, the role of law and law in the life of civil society is directly related to human rights - an issue in which E.A. is the indisputable authority. Lukasheva, N.I. Matuzov. N.V. Vitruk.
Many works of N.V. are devoted to the issues of human rights as a way of social (including political) existence. Varlamova. At the same time, she, following E.A. Lukasheva considers three generations of human rights as different shapes mediation of freedom from the perspective of various types of legal understanding. Methodological aspects of the modern development of the theory of human rights are highlighted in the works of L.I. Glukhareva.
The globalization processes taking place in the world require an analysis of the problem of personal self-identification from historical, political and legal positions, because overcoming the political and legal alienation of the individual is a challenge.
There is a need for constant rethinking of the relationship between civil rights and human rights, improving their standards and guarantees.
Several doctoral and master's theses have been defended in recent years on certain legal aspects of civil society.
This dissertation examines the political and legal aspects of the interaction between civil society and the individual, the legal forms of human participation in political activity, analyzes the factors influencing the self-realization and activity of the individual, and above all the role of law in this process.
Object of study. The object of research in the dissertation is the social relations that develop in civil society in the process of individual participation primarily in political activities, including the realization of their political rights, freedoms and responsibilities both directly and through various institutions of civil society.
Subject of study- patterns, trends and dynamics of expansion of self-realization and the impact of personality on the formation and development
civil society in Russia, as well as the role of civil society in the socialization and self-realization of the individual.
Purpose of the study. The purpose of this dissertation research is a conceptual and legal interpretation of the role and place of the individual in civil society, substantiation of practical recommendations aimed at ensuring human rights, his freedom, the most important “determinant” and at the same time “limiter” of which is law.
Research objectives follow from the purpose of the dissertation work, the logic of scientific research and include:
1) revealing the role of law in increasing the political and legal activity of the individual and the functioning of civil society in general and its individual institutions in particular, as well as identifying the political and legal mechanism for ensuring the rights and freedoms of the individual in political activity;
2) scientific analysis of theoretical principles developed in science and helping to determine the essence, features, structure and prospects for the formation and development of civil society in Russia;
3) identifying the direct and reverse cause-and-effect relationship between economic development, growth of spirituality, participation in the political process and the development of civil society;
4) analysis of the concept of personality and its place in civil society and identification of a special (legal) type of personality as the main subject of civil society (person-centric system);
5) study of the relationship between interest as the driving force of self-realization and the basis for the connection of individuals in civil society, as well as the freedom and responsibility of the individual;
6) identifying the relationship between personal autonomy and the autonomy of a self-governing civil society;
7) consideration of the relationship between the political and legal activity of the individual and the functioning of civil society and identification of factors influencing the self-realization and activity of the individual in civil society;
8) development of practical proposals to improve the legal regulation of relations between civil society and the state, between civil society and the individual, between the individual and the state;
9) a critical assessment of the prospects for the formation and development of civil society in Russia;
10) study of foreign experience in the formation and development of civil society.
Methodological basis The dissertation work consists of the use of a number of basic methods of cognition: dialectical, historical-legal, structural-functional, comparative-legal, sociological, formal-legal, logical, systemic, historical and others.
In preparing the dissertation, philosophical, political science, sociological, economic, psychological and legal works were studied, primarily on the theory of law and state, related to this issue.
The fundamental primary sources that form the philosophical and legal basis of the study are the ideas contained in the works of great thinkers of the past - Aristotle, G. Hegel, Helvetius, P. Holbach, Voltaire, T. Jefferson, D. Diderot, R. Iering, I. Kant, J. Locke, S.L. Montesquieu, B. Spinoza, J.-J. Russo, N.G. Fichte, D. Hume and others. The concepts of R. Aron, I. Bentham, E. Humboldt, E. Durkheim, O. Comte, G. Marcuse, D. S. Mill, V. Pareto, T. Parsons, and domestic philosophers were also used and lawyers M.A. Bakunina, N.A. Berdyaeva, Y.S. Gambarova, I.A. Ilyina, B.A. Kistyakovsky, N.M. Korkunova, I.V. Mikhailovsky,
15 S.A. Muromtseva, E.N. Trubetskoy, SL. Franka, B.N. Chicherina, G.D. Shershenevich and others.
The scientific basis of the dissertation was the works of such legal scholars as A.S. Avtonomov, S.S. Alekseev, A.I. Bobylev, N.S. Bondar, N.V. Varlamova, N.V. Vitruk, L.I. Glukhareva, V.G. Grafsky, N.L. Garnet, V.E. Guliev, D.V. Dzobziev, V.A. Kartashkin, A.V. Kolesnikov, S.A. Komarov, V.V. Lapaeva, O.E. Leist, E.A. Lukasheva, A.V. Malko, G.V. Maltsev, L.S. Mamut, O.V. Martyshin, M.N. Marchenko, T.D. Matveeva, N.I. Matuzov, A.A. Matyukhin, B.S. Nersesyants, A.V. Obolonsky, V.D. Perevalov, O.V. Rodionova, O.Yu. Rybakov, A.Kh. Saidov, V.P. Salnikov, M.V. Smolensky, Yu.A. Tikhomirov, S.A. Utchenko, O.I. Tsybulevskaya, A.F. Cherdantsev, V.A. Chetvernin, Z.M. Chernilovsky, V.E. Chirkin, A.S. Shaburov, V.M. Shafarov, N.A. Shai-kenov, D.V. Shutko, Yakubov and others.
The works of representatives of other humanities were also used: A.S. Aizikovich, A.Kh. Bulganova, G.M. Gaka, A.S. Gottlieb, A.Ya. Gurevich, M.R. Demetradze, A.G. Zdravomyslova, G.S. Kiseleva, F.Kh. Cassidy, I.S. Kona, A.I. Levina, A.I. Leontyeva, S.T. Parygina, S.P. Peregudova, I.I. Platonova, V.P. Pugacheva, E.Yu. Solovyova, Zh.T. Toshchenko, M.A. Hevesy et al.
The dissertation research was significantly enriched by the work of representatives of foreign science on the topics of democracy and civil society - A. Almond, E. Arato, X. Arendt, E.D. Bose, E. Gellner, L. Siedentop, A. Camus, J. Coleman, J. L. Cohen, N. Luhmann, M. Oriu, R. Pipes, C. Popper, J. Rawls, D. Sartori, A. Tocqueville. M. Friedman, E. Fromm, F. Schmitter and others.
The regulatory framework of the dissertation research includes: international legal acts on human rights, the Constitution of the Russian Federation, legislation of the Russian Federation, resolutions of the Constitutional
Courts of the Russian Federation, regulatory acts of the constituent entities of the Russian Federation. The work also used the regulations of public associations.
Scientific novelty of the research consists in a conceptual and legal analysis of the political and legal aspects of the interaction between the individual and civil society.
The concept proposed by the author of the dissertation is based on the fact that civil society is a sphere of socio-political and legal interaction between people, constantly ensuring the reproduction and development of a wide variety of social relations, the center of which is the individual (person).
The central place in the dissertation is occupied by the disclosure of the mechanism of influence of law on the activity (primarily political) of an individual, both directly and through various democratic institutions of civil society in order to rationalize the legal regulation of social relations. The implementation in practice of the legal capabilities of an individual contributes both to the stabilization of the established social order due to the individual’s awareness of the usefulness and necessity of certain social (political) decisions and responsibility for them, and to the satisfaction of private (personal), group, and ultimately public interests and requests.
The dissertation emphasizes that, despite the processes of globalization, it is impossible to build an absolute system of universal law, because in different societal and sociocultural societies, many legal concepts, for example, justice, are given different importance. In addition, one cannot ignore the peculiarities of mentality (political, legal, moral), social way of life, national composition, spirituality, etc. of this or that society. At the same time, any modern society absorbs the achievements of other civilizations, including in the field of legal regulation. At the same time, it must be borne in mind that everyone
people perceive spiritual, political and legal values in their own way.
The author of the dissertation proceeds from the fact that civil society is characterized by a special type of personality, for which the main thing is its freedom, respect for the freedom of others and the subordination of this freedom to law, i.e. willingness to limit this freedom in accordance with rules common to all.
All issues brought up for defense are considered through the prism of, on the one hand, the mutual influence of law, interest, freedom and activity of the individual, and on the other hand, the legal support for the relationship between personal autonomy and the autonomy of civil society.
The dissertation analyzes in detail the role of law in the self-realization of the individual in the political sphere of civil society, because political rights form the basis of democracy, in the process of development of which “universal” interest is achieved and at the same time political and legal socialization and self-realization of the individual occurs, i.e. “private” interest is realized. And this helps to overcome the alienation between the individual and society.
Based on the research, recommendations were formulated for improving the current legislation regulating the activities of civil society institutions, through which the political self-realization of the individual is largely carried out.
The peculiarity of this dissertation work is also that in the research process not only the legal conceptual apparatus and legal theoretical structures were used, but also the achievements of other humanities - philosophy, psychology, political science and sociology.
Provisions for defense and reflecting scientific novelty of research.
1. Civil society is a political, legal and socio-economic state (quality) of an integral system of human life and at the same time an arena of voluntary collective actions that demonstrate the provision of freedom and dignity of the individual, the satisfaction of private and public interests, as well as the realization of individual and collective rights and freedom. Institutionally, the formation of civil society is carried out through a system of institutions and relations designed to provide conditions for self-organization (the formation of civil initiative and activity) and self-realization of individuals and groups, satisfaction of private and public interests and needs within the framework of current law. We are talking about the implementation of interaction (interaction) between people, constantly reproducing a variety of social relations, within the framework of which the individual (person) exercises the freedom to choose a lifestyle.
2. Civil society is the sphere of activity not only of private individuals and non-governmental associations, but also of political organizations, including the state. Civil society and all its structural components operate in the legal space under the influence of government regulation. Civil society and the state are interconnected political and legal phenomena, a kind of tandem, where the leading role belongs to civil society, because it acts as the source of the state. In turn, the state has one or another impact on civil society (and quite active), but it must be commensurate with the characteristics of relations in this society, with the level of their maturity and the nature of the socio-culture.
3. The personal aspect of law is expressed in the individual’s claim to self-realization, which can ensure his right to specific actions of state structures to satisfy and protect his rights and interests. Law, to a certain extent, serves as the background against which reality takes place.
life of an individual. The impact of law on social relations is refracted through the prism of individual and social consciousness. Law influences the social activity of an individual, his socialization, regardless of whether the person himself strives for this or not. In other words, the purpose of law in civil society is to ensure the activity and self-realization of the individual.
4. The purpose and goal-setting of law in civil society is determined by a number of system-forming functions that arise from the main task of law - maintaining orderly relations between the state and society, between society and the individual. This presupposes the regulation and stability of social relations within civil society, as well as their transformation and development in the spirit of ensuring the self-realization of the individual.
These functions include:
Cognitive and educational (preparing each new generation to perceive legal values);
Regulatory-stabilizing (mitigating contradictions and eliminating social tension in society);
Integrative-communication (unifying people and ensuring, on the one hand, equality of opportunity in the absence of actual equality, and on the other, socialization of the individual by informing individuals about social values taken under the protection of the state);
Control-imperative (maintaining expedient and proper behavior of individuals and the functioning of civil society institutions).
5. The role of law in the self-realization of the individual is manifested, in particular, in the impact on the consciousness and formation of the individual’s worldview; in consolidating the legal status of the individual and delineating the boundaries of free social activity, including by granting broad rights and
freedoms; in establishing a mechanism for protecting the interests of the individual; in establishing the framework of free behavior of the individual, according to the principle “everything that is not prohibited by law is permitted”; in resolving various types of conflicts and disputes; in providing individuals with the opportunity to influence government bodies; in maintaining a dynamic balance between the interests of the individual and the interests of society; in consolidating procedures for the manifestation of personal initiatives.
6. Analysis of the role of law in civil society indicates that: all subjects of civil society, including the state, interact with each other in various spheres of life (sociological approach) on the basis of legislation (positivist approach), which enshrines formal equality, freedom of choice, and the implementation of inalienable and inalienable human rights and freedoms, compliance with legal regulations by everyone (philosophical, libertarian-legal approach). Thus, a mixed approach to solving this issue is advisable here, because all of the above scientific approaches to legal understanding allow us to conclude that civil society is a society of legal opportunities, i.e. opportunities to enjoy one or another benefit.
7. In civil society, the individual is responsible for choosing his own behavior. Freedom is always responsibility for one’s own destiny, the willingness to act absolutely freely within the framework of the possible. Responsibility is a legal activity in the implementation of subjective rights, freedoms and legal obligations, the ability of an individual to manage his behavior in accordance with the requirements that others and society as a whole place on him. We are talking about civil (non-legal) liability, which is individual and collective in nature. Its distinctive feature is its focus on the future. Civil society is a chance to overcome alienation.
Theoretical significance of the results. The scientific provisions and conclusions contained in the dissertation can form the basis for further in-depth theoretical and legal research into various problems and trends in the formation and development of civil society, identified during the work on the dissertation, for understanding socio-political processes and the formation of legal policy in Russia.
A number of conclusions can also be used to develop the theory of public associations and serve as a scientific and methodological basis for the legal regulation of certain aspects of interaction between the individual and civil society, the state and civil society.
Taking into account the peculiarities of the subject of the dissertation research, these provisions are important not only from the point of view of the theory of law and state, but also the science of constitutional, administrative and municipal law, especially in the conditions of political and state reform, modernization of Russian society and the state.
Practical significance of the research results. The results of the dissertation research can be used, firstly, in the process of forming civil society in Russia, secondly, when improving constitutional and other legislation, thirdly, when teaching a general course and special courses on the theory of state and law, training courses on constitutional, municipal and administrative law in law schools, fourthly, when forecasting the development of political processes in Russia, fifthly, in the activities of specific collective subjects of civil society and, finally, sixthly, in legal educational work with the population in order to increase its political and legal culture.
Approbation of research results. The dissertation was completed and discussed in the sector of theory of state and public associations, sector
general theory and sociology of law, Institute of State and Law of the Russian Academy of Sciences.
The main results of the research are reflected in the dissertation author's published works (monographs, brochures, articles), as well as in many memos sent to government bodies and public associations. The total volume of works published on the topic of the dissertation is more than 50 pp.
The dissertation research materials were used in the process of teaching the academic discipline “Theory of State and Law” at the Academic Law Institute and its branches (Anapa and Ryazan) and the State Academic University of the Humanities (Moscow).
Dissertation structure determined by the purpose and objectives of the study, as well as the logic of presentation. The dissertation consists of an introduction, four chapters, including 14 paragraphs, and a conclusion. At the end of the work there is a list of used literary and normative legal sources.
MAIN CONTENT OF THE WORK
In the introduction the relevance of the dissertation research topic is substantiated, the degree of its scientific development is analyzed, the object, subject, goals and objectives of the research are formulated, the research methodology is characterized, its theoretical and normative basis is determined, the scientific novelty is substantiated, the provisions put forward for defense are stated, the theoretical and practical significance is indicated research, information about the testing of its results is provided.
The first chapter “The concept of civil society” has methodological significance for the entire dissertation work, because it reveals the concept of civil society and the place of the individual in it.
In the first paragraph “Civil society as a sphere of personal self-realization” the phenomenon of civil society is explored. The applicant, based on an analysis of the available scientific literature, states, firstly, a huge interest in the problems of civil society, secondly, notes that the concept of civil society has a long history of formation, thirdly, emphasizes that civil society can only be spoken of in relation to New times and only to a developed legal culture, when a person, his rights and freedoms are recognized as the highest value, i.e. when there is a rule of law.
Of course, civil society cannot arise overnight, at the behest of the “tops” or the desire of the “bottoms,” although it can be initiated from above, including from the state. It is the result of a fairly long development of civilization, a culture of the legal type and corresponds to the developed state of legal culture. Civil society is a special character of economic, spiritual, moral conditions of life that promotes the free realization of private and public interests of individuals. Undoubtedly, the emergence of civil society is associated with the development of private property, which became a stimulus for human creative activity, his interest in the development of production, the basis for the emergence of a middle class, characterized by a fairly high level of education, qualifications, and the amount of controlled information.
The dissertation author considers civil society as a certain social system and political and legal state. The goal of such a system is to achieve freedom - the condition and method of self-existence of a person as a full and active member of the community, “an equal among equals”, capable of developing value guidelines and pursuing their various interests according to the rules (including legal ones) that operate in society. The goal of the emerging civil society in co-
temporary Russia today largely coincides with the goal of the state - ensuring human freedom, satisfying his needs and interests, recognizing natural and inalienable human rights, i.e. creating conditions that ensure a decent life and free development of individuals. The result of the functioning of civil society, on the one hand, is the improvement of various social relations - economic, social, spiritual, informational, organizational, etc., and on the other hand, the improvement of the person himself, the development of his professional and creative potential, his emergence as a full-fledged and a responsible member of the community in the sense of upholding responsibilities and respecting the rights of others.
The dissertation author proceeds from the fact that civil society is always an integral system that has a historically specific character, the features of which are determined by the geographical location and the level of development of the economy, culture, the national mentality of its members, etc. In addition, civil society is inclusive, i.e. covers all aspects of social life. It expresses the interests of its members, develops its own normative regulators of social relations and at the same time has effective resources and mechanisms for controlling human behavior. At the same time, civil society is characterized by independence and autonomy.
This gave grounds to characterize civil society as an integral system of people’s life activities that actually ensures the freedom and dignity of the individual, the satisfaction of private and public interests, the implementation of individual and collective rights, freedoms and responsibilities (qualitative and activity components). The formation of this state is carried out through a system of institutions and relations designed to provide conditions for self-organization and self-realization of individuals and groups, satisfaction of private and public interests,
the individual’s exercise of freedom to choose a lifestyle within the framework of the current law.
In the second paragraph “Signs of civil society” the conclusion is drawn about the following features of civil society:
1. This is a free society of free people, in which civil freedom is ensured by law and is a necessary condition for the improvement of man himself, a guarantee of the preservation of human dignity. Man is a unique and inimitable being, which, in relation to each historical era, accordingly manifests itself only in society and through society. The state acts as a guarantor of human economic, social, political and spiritual freedom, and the individual is the connecting link between civil society and state power;
2. Civil society is based on a variety of personal (private) interests. However, ensuring the existence of society is achieved not through the sum of private interests, be it an individual or a social structure, but through a general interest realized by the individual. The latter can affect both the interests of a group, collective, etc., and society as a whole, for example, raising children, i.e. represents a perceived need. Achieving a common interest presupposes the formation of conditions under which a person can freely act in the name of his own, sometimes very selfish interests. These actions depend, on the one hand, on a person’s value attitudes and ideas, on the other, on his psychophysical attitudes;
3. This is an open society in terms of commitment to universal humanitarian values, providing access to broad and diverse information, including on an international scale;
4. This is a self-organizing society, but by no means a spontaneous phenomenon. It has management, control, and organizational structures that
which are internal to it, are constantly in dialectical movement, full of contradictions and independent of the state and are even capable of limiting its power. All citizens, without exception, have formally equal opportunities to influence government structures. In civil society there is a mechanism that sooner or later unerringly absorbs everything that is useful and rejects what is unnecessary and harmful, which makes such a society a fairly stable system;
5. This is a complex structured society, consisting of voluntarily formed public associations, economic associations and cooperations, religious and other non-state associations, built on horizontal connections, on interaction with each other. In addition to purely organizational structures, civil society presupposes the presence of non-political relations (economic, social, spiritual, etc.), customs and traditions, and mentality. All this characterizes social and political pluralism. As for the state, it is an indispensable, although not the main, very specific subject of civil society (the state as a whole and, taking into account the form of government of the Russian Federation, its subjects).
The state plays a sort of serving role in relation to society, i.e. creates and ensures conditions for the normal functioning of civil society, including through the use of law. The state, using coercion, ensures legal freedom and security of the individual. In other words, there is a direct and feedback relationship between the state and civil society. Civil society (like any other society) is the source of the formation of the (legal) state. The peculiarity of civil society is that it outlines the limits of state intervention in its affairs and shapes the tasks and functions of the latter. The state, being part of civil society, due to its possession of power, authority and corresponding resources,
constantly maintains existing social relations. And the stronger and more powerful the state, the more actively it represents and protects the interests of its population, the more reason we can speak about the existence of a developed civil society;
6. This is a legal society. The role of law is expressed in ensuring an optimal balance between management and self-government, in creating prerequisites for long-term prospects for the development of society and the state, in accelerating real processes in the sphere of reproduction and self-regulation of civil society and the realization of creative potential in it.
At the same time, civil society is not a collection of individuals acting in their own interests in accordance with social norms. This is a special form of historically established, stable organizational and legal conditions and forms of interpersonal and other relationships, horizontal connections between its subjects, allowing an individual to show initiative, creative and civic activity, to act for the benefit of a person, his family, the state and society as a whole. At the same time, civil society is the sphere of life activity and guarantee of the rights of every person, regardless of his social activity, social roles, merits, moral or ideological orientation, etc., and not just the best part of society - the elite. The elite is not society itself, but only its core.
In the third paragraph “Legal aspects of the relationship between economic development, growth of spirituality, individual participation in political activity and development of civil society" the cause-and-effect relationships between economic development, the growth of spirituality, participation in politics and the development of civil society, ensuring human well-being and freedom are revealed.
The dissertation author believes that the development of civil society can be judged primarily by the degree of economic freedom of the individual, the level of development and satisfaction of its material (however, spiritual) needs.
news The economy is based on the mutual interest of people in the results of each other’s activities, because the exchange of them gives rise to a person’s ability to freely enjoy the benefits of civilization. In the process of realizing his needs, the individual constantly improves the forms of material production. At the same time, optimal use of material and human resources, development of innovations, and increased social responsibility of the individual for his destiny are achieved. It should be emphasized that a person in the economic sphere always acts with the goal of extracting maximum benefit (material profit or other benefits that go beyond the material, for example, achieving prestige, a high position in society, etc.). In civil society, each of its members is recognized with the right to freely use their abilities, including in entrepreneurial and other economic activities not prohibited by law, which presupposes the development of a free market economy.
The dissertation concludes that economic freedom presupposes the need to act within certain limits and comply with specific “rules of the game.” The value of law lies precisely in the fact that it simultaneously provides and limits economic freedom, because it establishes the rights and obligations of participants in economic relations and provides for procedures and forms of their protection, including at the international level. Legal regulation of economic relations plays an active organizing role, since law outlines the boundaries of ownership, use and disposal of property. In this regard, civil society is characterized by an increase and detail of civil, financial, tax, business, banking and other branches of law, i.e. industries that directly regulate the sphere of economic relations.
Particular attention is paid to the problem of privileges. Using the example of labor legislation, which guarantees a minimum wage (independent
Simo from the profit of the enterprise), the dissertation author proves that these and other benefits do not at all contradict the foundations of civil society, but, on the contrary, contribute to social stability and create conditions that ensure a decent life and free development of people, increase the efficiency of the economy. In other words, we are talking about creating favorable conditions for citizens to achieve certain benefits through their own efforts, i.e. about equalizing opportunities for people.
The dissertation author proceeds from the fact that economic relations in civil society are largely based on equality and personal initiative. Of course, equality in civil society is legal (formal) equality. It presupposes equal opportunities, but by no means equalization, and is not limited to distribution relations.
2) meanings and solutions to demographic problems, i.e. human reproduction, education, including legal education, of children; On the one hand, the biological, and on the other, the social principle comes to the fore, which is generally denoted by the terms “man” and “personality”;
3) the social structure of modern Russian society. For civil society, according to the dissertation author, it is characteristic that people often either rise up the social ladder, or vice versa, and also constantly move horizontally, in particular, moving from one professional group to another (which is greatly facilitated by the possibility of obtaining a second higher education). education), moving from one region to another (exercising freedom of movement), etc.
The personal aspect of civil society is most manifested in the sphere of culture (spirituality) - a sphere that is the result of freedom of mental and moral creativity of a person, where self-realization of the individual most often occurs, the humanization of society itself and national and other characteristics are preserved. Moreover, for most people, the norm of behavior is not the law or even the law in general, but culture. Culture carries within itself an active principle, implying different forms of activity, naturally, within the framework of generally accepted ideas. This is a kind of way of self-regulation, reproduction and development of society, a mechanism of adaptation and self-realization of the individual. The development of civil society is influenced by the social way of life, national composition, mentality, traditions, religiosity, spirituality as its sociocultural reflection. At the same time, any modern society includes elements of other civilizations. This is especially evident in modern conditions of development of information communications.
The most important aspect of the formation of civil society is the freedom of political choice belonging to the individual. Restriction of this freedom leads to authoritarianism. However, personal freedom presupposes the establishment of limits for an individual to use his rights and interests. Freedom must be limited by federal law to the extent necessary in order to protect the foundations of the constitutional system, morality, rights and legitimate interests of the individual and ensure the defense capability and security of the state (Part 3 of Article 55 of the Constitution of the Russian Federation). This is legal freedom that ensures human behavior that is safe for society. Moreover, all citizens have formally equal access to both power and politics through parliamentarism and various kinds of democratic institutions. At the same time, we must not forget about the different real influence on politics (especially internal) of certain groups that have unequal resources of political influence.
Civil society cannot simply be proclaimed. The process of its formation is long and contradictory. It includes: political and economic stability; the presence of clearly established, and most importantly, respected limits of government intervention in the sphere of civil society; ample opportunities for the manifestation of initiative, initiative and activity of individuals and their public institutions; economic independence of civil society institutions; the presence of legal legislation that meets the needs of civil society; the realization of the sovereignty of the individual, the revival of his morality - the most important component of the formation of civil society, which is the most complex process.
IN fourth paragraph “The role of law in civil society” it is said that law is an indispensable component of social management, its normative and integrating element.
The social effect of law is expressed primarily in the fact that law determines the legal status of the state, public, religious and other associations of citizens, and individuals. Law outlines the boundaries of legal regulation, indicates by what means and methods a person’s satisfaction with his rights and freedoms, and the resolution of various kinds of conflicts and disputes are achieved. Law is characterized by functional expediency, because it simultaneously ensures a universally sustainable character, foresees the future development of the rule of law and civil society, and suggests which way the individual will direct his activity in the future.
The process of formation of civil society is associated with the fact that law is aimed at maintaining the constant reproduction of an integral sphere of public life, creating new institutions and at the same time presupposes stabilization and dynamics in this area by resolving various situations, including conflicts of interest. Law in civil society
aimed at integrating society, ensuring its unity and social harmony in it “through the resolution of social conflicts within the framework of a universal legal form.” This is one of his values.
The peculiarity of law in civil society is that it consolidates and gives legal form, and therefore the possibility of state protection, to many moral actions. In civil society, the purpose of law is not limited to its purpose of creating a regulatory barrier for offenses. The main thing is legislative recognition of the economic, political-legal and spiritual autonomy of the individual as a source of moral and political stability of society. Therefore, the most important feature of civil society is adherence to the democratic principles of justice and social justice.
The role of law in the self-realization of an individual is manifested, in particular: 1) in influencing his consciousness and the formation of his worldview; 2) in consolidating the legal status of the individual and delineating the boundaries of free social activity, including by granting broad rights and freedoms; 3) in establishing a mechanism for protecting the interests of the individual; 4) in establishing the framework of free human behavior according to the principle “everything is permitted that is not prohibited by law,” as well as the means and methods by which an individual achieves satisfaction with his rights and freedoms, resolution of various kinds of conflicts and disputes; 5) in providing the individual with the opportunity to influence government bodies; 6) in maintaining a dynamic balance between the interests of the individual and the interests of society; 7) in consolidating procedures for the manifestation of personal initiatives; 8) in protecting the individual from the state itself, preventing its interference in personal life (personal integrity).
Law regulates three spheres of interaction in civil society: between individual subjects - individuals (civil law);
between collective entities - the church, public associations, etc. (constitutional, administrative law); between individual and collective subjects (for example, labor, family law).
The dissertation author considers the self-realization of an individual as certain legal opportunities to act in one way or another. It seems that in relation to the role of law in increasing the socio-legal activity of an individual, it should be analyzed from the standpoint of various types of legal understanding. Thus, considering law as a system of generally binding norms, it is possible to identify legal possibilities that are established and guaranteed by the state. For example, we are talking about the right to elect and be elected, in case of violation protected by administrative and criminal law (positivist approach). From the point of view of the sociological approach, law is understood as a social institution that presupposes the functional significance of legal norms, i.e. how they are implemented. Civil society is the sphere of practical activities of individuals to satisfy their everyday interests and needs, the realization of rights and freedoms. Self-realization of a person is nothing more than certain legal actions, i.e. a specific process for resolving a specific problem. And finally, in the aspect of philosophical vision, law is external freedom, determined by legislation and manifested in certain individual actions, a measure of equality, freedom and justice. As for justice, according to the American scientist J. Rawls, there are two types of it: real and formal. If the first assumes that all social values should be equally distributed, then the second is the rule of law and the fulfillment of acceptable expectations. And in this case, real and formal justice coincide. From the point of view of civil society, justice should be understood as rationality and justification.
the importance of current legislation and its compliance with social realities, as well as strict adherence to the law by everyone. Thus, civil society must be considered as a society of equal legal opportunities to enjoy one or another benefit.
Although the Constitution of the Russian Federation does not mention civil society, almost all articles of Chapter. 1 and 2 establish the basic provisions that characterize the essence of civil society and allow us to separate the sphere of action of civil society and the state. They talk about the rights and freedoms of the individual, the recognition of man and his natural, inalienable, inalienable rights and freedoms as the highest value, the state protection of rights and freedoms, including political ones, and also draw a clear distinction between human rights and the rights of a citizen. In addition, the current constitutional legislation of almost all countries, including Russia, makes it possible to clearly define the constitutional foundations of the economic, social, spiritual, cultural and political spheres of the functioning of civil society.
The dissertation author analyzes the features of the current legislation regulating the activities of civil society institutions. In particular, it is noted that it regulates a wide range of activities of democratic institutions and affects various interests of the population, and also points out that the population is poorly informed about the basic provisions of the law, especially in the localities. In addition, it is stated that the main idea embedded in the Russian Constitution - a person and his rights as the highest value - today remains quite difficult to implement. The purpose of law in civil society is to ensure the social activity of citizens, on the one hand, by providing them with broad rights and freedoms, and on the other, by establishing a mechanism for protecting (in particular, judicial) interests
person. And the higher the normative and regulatory significance of law in real relations, the more confident we can say that society is truly free and open.
To understand the role of law in civil society, in stimulating individual activity, it is important to keep in mind that law is not only legal regulations, but also a complex of psychological ideas and emotions. Political and legal activity (as well as other activities) is carried out not only with the help of law, but also in the sphere of its action. It is also equally important that it is the right that is recognized to affirm and protect human dignity in society. Law in civil society is both a measure of freedom and a measure of justice, and proper behavior as it is seen by the state and society, and specific behavior manifested in the process of realizing personal subjective rights and responsibilities. By regulating social relations, law passes through the consciousness of the individual, receiving a positive or negative assessment from the point of view of the value and necessity of a specific legal regulation in the interests of either the individual himself, his family, or society and the state. Depending on this, the individual exercises or does not exercise his subjective right by entering into specific legal relations. The main purpose of law in civil society is that it serves not only as a universal regulator of social relations (this is an axiom), but also as an instrument for coordinating the interests of various people and social strata, i.e. to a certain extent promoting unity and cooperation.
The dissertation author comes to the conclusion that law, by providing freedom of choice, makes the process of a person acquiring the quality of an autonomous personality irreversible. Law, to a certain extent, serves as the background of an individual’s daily life, because it influences the social activity of the individual, his socialization, regardless of whether the individual himself strives for this or not. Law is objective in nature and its impact on social relations
niya is refracted through the prism of individual and social consciousness. Law is always a form of expression of agreed upon general interests, which gives it a real character and determines its leading role among all normative regulators of social relations. This allows the law to ensure the unity of the entire regulatory system.
Speaking about the personal aspect of law, it should also be emphasized that the value of law lies in the fact that it builds a normative barrier not only against private arbitrariness, “but also against attempts to forcefully make people happy and forcefully improve themselves. Law is the fundamental antithesis of paternalism."
Thus, law in civil society performs the following functions: cognitive and educational (preparing new generations to perceive legal values); regulatory-stabilizing, mitigating contradictions and other social tensions in society; integrative-communication, uniting people and aimed simultaneously at ensuring equality of opportunity in the absence of actual equality (which is impossible in any society) and socialization of the individual by informing individuals about social (political and legal) values; control-imperative, aimed at maintaining expedient and proper behavior of individuals and the functioning of civil society institutions by implementing external (encouragement, restriction, coercion) and internal control (role perceptions, adaptation, socialization).
Chapter two “Personality and civil society” is dedicated to an individual who, in civil society, declares himself to be an autonomous and free being, as a creator of material, spiritual, political and other values.
In the first paragraph “Personality is the main value of civil society” the place and role of the individual in civil society is considered, it is emphasized that the individual always acts as both a subject and an object of social relations. The “quality” of society depends on its activities, and vice versa, society presupposes the “quality” of the individual himself, because without it social interaction and existence are impossible those or other public institutions.
Unlike nature, where unconscious forces operate, in civil society the ball is ruled by a person, an individual, the owner of private interests and needs, for the satisfaction of which he is endowed with the ability to consciously act, pragmatically solve economic, political and other problems together with other people.
In modern science, personality is considered from various positions. Legal science also has its own vision of personality. At the same time, we can highlight what is common in all definitions of personality. It boils down to the fact that personality is an integral concept that includes the characteristics of a person as a specific individual with the entire totality of his social qualities and relationships formed in the process of his interaction with other individuals. A person in civil society exists as an autonomous person, however, along with individual characteristics, the person absorbs subjective and group experience.
The analysis of the issues discussed in this paragraph allowed us to draw the following conclusions.
1. The individual’s need for self-realization - a natural universal quality of the individual - presupposes the disclosure of versatile human abilities in the process of socialization of the individual. This is achieved through a person’s awareness of his individuality and at the same time a certain adaptation to the surrounding reality. And depending on how a person has learned “social experience”, how much does it correspond to her
life interests and attitudes, how a person’s personal safety is ensured, the individual becomes aware of his individual significance and need. From a behavioral point of view, this is free will, a manifestation of self-regulation of the individual, which characterizes the internal individuality of a person, his self-realization in different areas of activity.
2. In a civil society, a person with individuality, manifesting his will, nevertheless always acts within a certain framework that meets the requirements of society, its value-normative rules (standards). Here, a huge role is played by internal regulators, which are characterized by temporary stability - mores, customs, traditions, morality and behavioral stereotypes. A person’s behavior largely depends on the assessment given to him by others, by one or another social institution. Considering the individual as the basis and main value of civil society, it is necessary to emphasize the connection between the individual and the collective. On the one hand, each person is individual and perceives himself as an independent person, and on the other, society gives rise to certain guidelines and requirements based on ideas about goodness, beauty, etc., which are expressed in social, including legal, norms.
3. Civil society promotes the free realization of personality and its priority, which gives rise to a special type of personality - an individual for whom the main thing is freedom “as equal freedom of everyone (equal - within a certain circle of free people)." Legal socialization presupposes the subordination of freedom and individuality to the norms of law. To a certain extent, this determines the unification of behavior and adherence to appropriate stereotypes, but only at first glance. In reality, the individual always strives to form his “I”, act and implement
make decisions independently, without violating generally accepted rules of behavior and, first of all, the rules of law.
4. Civil society is characterized by a continuous process of human isolation and, at the same time, interaction and unity of people in the course of their joint life activities. The social connections into which a person enters are inherently repetitive. It is important for a person to satisfy a wide variety of interests and needs, including political ones - it is in this case that the dependent attitude of the individual towards society and the state is overcome and an attitude towards political participation is developed. And a person not only becomes the “smith of his own happiness” in material, spiritual and other ways, but also does not separate his interest from the interest of society.
A person in civil society, regardless of the scope of activity, is capable of defining the living space of his activities and at the same time creating organizational forms such as commercial organizations and public associations. This does not mean that everyone should be involved in business or be a member of a party or other association. Legal freedom is the basis for the self-organization of civil society and determines the nature of its interaction with the individual. We are talking about specific subjective rights and legal obligations, i.e. about the general legal status of an individual, which serves as the basis for a person’s awareness of his individuality and determination of his place in society.
Only a society in which an individual has real, including legal, guarantees of his normal existence, including the opportunity to participate in politics, can be civil.
5.. The declaration in the Constitution of the Russian Federation (Article 7) of a person as the highest value, as it were, transfers this concept from the moral category to the legal plane and makes a serious application for the formation of civil society in Russia. Recognition of man, his rights and freedoms as the highest value
This significantly changes the nature of interaction between the individual and the state. This is expressed in the fact that personal freedom in the state, in accordance with the formula “freedom is the right to do everything that is permitted by the state,” becomes a thing of the past in relation to citizens, and in relation to state bodies and officials it becomes determining their legal competence. Gradually the understanding comes that human freedom is the right to do everything that is not prohibited by law. The state is proclaimed as an instrument for ensuring a decent life and protecting the rights and freedoms of each individual, while previously the good of the state was the goal for which a person worked and acted. As for modern Russia, this is still a programmatic position. Recognition of this formula leads to the distinction between civil society and the state. A person is given the opportunity to express and realize his individual interest in various spheres of society and the state, which is the key to personal success and the engine of social progress.
The peculiarity of civil society is also that it is characterized by equality of legal opportunities, but by no means actual equality, i.e. equality of results, including legal ones. Personal freedom in itself does not lead to the formation of a civil society; it only presupposes the opportunity to act in one’s purely personal (private) interests, but at the same time it gives rise to the obligation to refrain from any actions that violate the interests of other persons (passive form of behavior), and these restrictions are not an infringement of freedom.
But most importantly, we are not talking about a state that has received the name “freedom from...” in the scientific literature, but about an active principle in human behavior aimed at the active implementation of one’s rights and interests in accordance with the legal formula “freedom for...” (leaving aside the internal state of freedom). Freedom is the basis of the constitutional order of society.
This freedom is expressed in the fact that, being sufficiently autonomous in relation to society and the state, the individual has the ability to interact with other people to achieve common goals, including subordinating his will to the requirements contained in legal regulations, because this promises one benefit or another for her.
In the second paragraph “Concept and content legal freedom personalities" the essence of legal freedom is considered, which is the basis for the self-organization of civil society and determines the nature of its interaction with the individual.
The concept of freedom significantly expands the manifestation of personal self-determination in the sphere of both individual (private) and public life, because it is impossible to separate the individual from the collective. The public good, and therefore freedom in society, is achieved through the freedom of each of its members, and vice versa.
As pointed out by B.C. Nersesyants, “people are free to the extent of their equality and equal to the extent of their freedom.” This means that the scope of legal freedom has been and is being affirmed as the principle of formal legal equality (equality in rights) is universally recognized, since law is an equal measure of behavior. Gradually, in consciousness and in real life, a person’s liberation from personal dependence occurred and continues to occur. However, neither before nor today is absolute independence of one person from another possible. Take, for example, the relationship between employer and employee, manager and ordinary employee. But, again, this “unfreedom” is of a legal nature, since its measure is provided for by the rules of law.
Legal freedom implies the ability of an individual, in one form or another, provided for by law, to influence state power. Finally, legal freedom means the right to choose, i.e. self-realization. The individual is free to choose the goals, methods and means of realizing his rights and freedoms.
bod, but at the same time the prohibitions established by law - the rights and interests of other individuals and society as a whole - should not be violated. The right to choose also means the freedom not to exercise one’s rights, for example, the right to participate in elections, the right to associate in public organizations, etc.
The law simultaneously provides for and protects the freedom (right of choice) of the individual and limits arbitrariness, which is aimed at infringing on the freedom of others. Freedom of an individual is the freedom of his will, which in law is understood as a will that corresponds to the norm. And everything that is the content of a legal norm - permissions, obligations, prohibitions, responsibility - is nothing more than conditions of freedom. Freedom and independence of the individual are most manifested in their natural rights, which are the most adequate measure of the maturity of civil society. The activities of all its structural elements are, to one degree or another, aimed at satisfying and protecting the rights and interests of an individual, at satisfying the private needs of the individual, which, however, excludes their interference in private life.
In modern Russian society, the range of perceptions of individual rights and freedoms is quite wide - from the belief that a person has only those rights that the state has granted him, to the complete autonomy of the individual (i.e., the absence of any obligations to society and the state). The truth is somewhere in the middle, because personal freedom is determined by socio-economic and political development at each historical stage and, as already mentioned, presupposes legal equality, i.e. the freedom of one is equal to the freedom of the other, and, therefore, there was not, is not and cannot be absolute freedom in human society.
One of the main features of civil society is the legal definition of the content of freedom and justice. This makes it possible to streamline the relationships of people in society and establish the scope and limits of people’s exercise of their rights and freedoms. Justice -
a concept that is both moral and legal in nature. In the first case, it presupposes the presence of a certain good, in the second - a measure of freedom. Freedom is not understood as the acquisition of exclusively rights, but also includes responsibilities, i.e. proper behavior. Thus, freedom is the precursor (condition) of good (individual, group or social).
Modern Russian society is heterogeneous both in economic and cultural aspects. The very idea of freedom remains unusual and frightening for the average person. In a number of cases, this results in an active rejection of human independence and freedom, an anti-individualist position on the principle “no one should be better off than me.” Western society is characterized by a different stereotype: “to be no worse than Smith.”
Human freedom in civil society is not predetermined and depends on certain social forces. It manifests itself in the activities of people and their organizations, adjusted by objective life conditions (circumstances) and aimed at satisfying the most diverse interests of the individual. It is interest that determines the content of the right, the possibilities and the need for specific behavior.
In the third paragraph "Interest"- driving the power of self-realization And the basis connections of individuals in civil society" considers the concept of interest as an expression of a person’s certain attitude towards the world around him and the motivating force of people’s actions.
Any actions of an individual in civil society (especially in the political sphere) are determined by the final (although not always clearly formulated or conscious) goal that the individual sets for himself, seeking a specific interest and a set of means and methods that help to achieve it. This presupposes the presence of both objective facts - the proper level of development of the economy, culture, legislation and other regulatory standards, etc., and subjective ones - interests, motives, legal
consciousness. The dissertation author concludes that the interest of the individual is not limited only to his purely individual needs (material, spiritual, etc.), but extends to the family, nation, society as a whole, covers all spheres of life, individualizes the personality in social relations, manifesting itself in her activities. The formation of personal (private) interests is influenced by various life circumstances and a person’s awareness of his social needs. Interest, being a necessary property of a person, connects him with other members of civil society. Interest does not “live” indefinitely. Depending on the influence of life circumstances, the state of political and legal reality, the level of individual freedom in society, it can either increase or decrease. The decline in the interests of the individual leads to his lack of initiative and apathy and, ultimately, to the stagnation of society.
In civil society, the interests of the individual are enriched, the possibilities for their implementation are expanded, and their structure becomes more complex. This process occurs independently and outside of human consciousness and assumes that the bearer of interest, trying to achieve one or another goal, i.e. desired result, performs an act of will.
Further in the dissertation, the idea is advanced that the functioning of civil society is based on active desire and ability. The dominant feature in this process is the consistent and real overcoming of the individual’s alienation from the means and results of labor, from politics. We are talking about creating conditions for the expanded reproduction of human existence, and ultimately to satisfy objective interests and needs. Thus, civil society performs the most important function of socializing the individual through his inclusion, in particular, in political activity through private interest and thereby provides the individual with the opportunity to express himself and develop his potential as a political subject.
In his scientific research, the dissertation author focuses on the role of law in the formation and implementation of interests, which consists of the following:
1) law legally establishes certain ideals (models) of behavior, ideas of justice from the point of view of the interests of society and the state, and thereby stimulates the proper behavior of individuals;
2) the law provides for ways to realize and protect human interests in the form of a subjective right or legal obligation;
3) law plays the role of an “impartial judge” in a clash of individual interests and ensures a balance of individual and public interests.
The use of rights and the fulfillment of duties are the main forms of manifestation of activity in pursuing the interests of the individual. In a civil society and a rule-of-law state, passive forms of realizing personal interest are also of no small importance - compliance with the prohibitions provided for by current legislation.
Fourth paragraph “Individual autonomy and autonomy of civil society” dedicated to the problem of the relationship between the individual and civil society. The dissertation author proceeds from the fact that personal autonomy presupposes non-interference in the personal and family life of an individual from anyone - people, groups, society and the state, ensuring the private interest and dignity of the individual. The level of personal autonomy is the result of a complex multifaceted interaction between a person and society. Moreover, there is no absolute autonomy of the individual and civil society, because freedom is regulated and limited by the interests and equal rights of other people. As for civil society, its autonomy is This independence and initiative of institutional public and commercial structures, religious associations, education and art, etc. Independence and self-activity presupposes
freedom of activity of civil society institutions, consistent with internal (statutory) goals and objectives and current law.
Personality should always be considered in the triad: person - collective - society. The position of a person in the civilized world is determined by the general social and personal value of law. Moreover, this value, on the one hand, ensures the recognition of law as a useful and socially significant phenomenon, and on the other hand, it generates the need and interest to act in accordance with legal regulations. The active legal behavior of an individual, according to the applicant, is a criterion for the state and quality of social life, since such behavior is exclusively conscious and creative in nature. It requires constant adaptation of the individual to the needs of social development, and vice versa, society itself adapts to the needs of the individual and is a means of influencing the social environment in order to adapt it to its needs and interests.
Law, determining the position of a person in society, taking into account the level of development of the individual and society achieved in the corresponding historical period, is based primarily on the interdependence of the interests of the individual and society. An active personality is an objective need of civil society, in which a person’s attitude towards a person, towards the object of his interest and need in the cognitive, value-evaluative and behavioral aspects is constantly reproduced. Personal activity presupposes initiative, enterprise, overcoming paternalistic and nihilistic attitudes towards law, the ability to make decisions,
Personal autonomy lies in freedom from any ideological dogma (internal), in the right to choose the line of one’s behavior (external). In the dissertation research, there is a clear distinction between the freedom of will and the freedom to realize it. If the first is nothing more than a definition of the independence (full or partial) of human will, then the second is the practical implementation of this will in relationships with people, society
national institutions, with the state and society. Here certain “limiters” of personal autonomy already appear, and primarily legal ones (and no less moral and religious).
Personal autonomy is most clearly manifested in a person’s self-awareness, in the formation of the image of his “I”. This image includes not only a cognitive-emotional aspect, but also a behavioral one, which manifests itself in the process of communicating with people, in one activity or another, i.e. in the process of a person mastering certain roles. We are talking about personal self-identification. Civil society is a “school” where a person learns about himself.
The individual in civil society is considered both an object and a subject. In the first capacity, the individual is the subject of concern for society and the state. This is achieved, in particular, with the help of law, which provides for a specific mechanism for protecting the rights and freedoms of citizens, including the institution of legal responsibility, the implementation of legal and social policies. Other normative regulators of social relations also play an important role - morality, religion, traditions that contribute to the self-regulation of civil society. In the second capacity, the individual acts, for example, in politics, using democratic institutions, parliamentarism, a real multi-party system, self-government and other forms of citizen involvement in political activity.
There cannot be absolute autonomy of the individual and autonomy of society, because the individual and society are united by common economic relations, culture, language, religion, national mentality, patriotism, the presence of a state component of society, as well as the current legislative system.
In the fifth paragraph of the second chapter “The relationship between freedom and personal responsibility” the problem of responsibility in the process of manifestation of personal freedom is analyzed. According to the dissertation author, the understanding of freedom
people with different levels of culture and different positions in society includes By at least the following aspects: 1) knowledge of what is necessary; 2) the possibility of choice, the availability of alternatives; 3) protection from unwanted influences (freedom from violence, hunger, poverty, etc.); 4) freedom as the absence of external restrictions (“I do what I want”); 5) the ability to achieve goals, self-realization of the individual. Moreover, legal freedom (and anything else is impossible in society) excludes the fourth of these aspects. It is emphasized that today the overwhelming majority of citizens practically do not connect the concept of freedom with law, with human rights. In their opinion, freedom lies in the socio-economic sphere.
Legal freedom does not mean “will,” arbitrariness. It includes the limitation of arbitrariness by a common norm for all - the requirement not to violate the freedom of others. A free individual is responsible for the consequences of his activity - in the family, in a particular group, in the state and society. In other words, you cannot be unlimitedly free in society. The role of law is that it only provides freedom, and does not impose it. The law establishes uniform, clear, generally binding rules of behavior and is based on the state apparatus of coercion, the appeal to which is associated with the use of the protective (protective) function of the law.
The problem of responsibility presupposes an individual's awareness of his place in society, an understanding of the need to comply with certain rules of behavior. In the process of communication and interaction with other members of society, an individual develops a normative value system, a kind of “inner world.” And if a person aligns his behavior with legal requirements, he develops an attitude toward free legal behavior equal to the behavior of others.
Freedom and responsibility presuppose good behavior, respect for the dignity of others, fulfillment of legal obligations and, above all, compliance with applicable legal prohibitions. Thus, responsible behavior presupposes the ability to act absolutely freely within the limits of what is possible. Responsibility is the ability of an individual to manage his behavior (activity) and be responsible for his actions in accordance with the demands placed on him by his family and friends, the relevant team and society as a whole. There is V type of civil liability (non-legal), which is individual or collective in nature, when it comes to a specific individual or organization.
Freedom and responsibility are two sides of the same “coin”. There is freedom of social (including political) choice belonging to the individual, which is not identical to anarchy and anarchy. A person is fully responsible for the choice of his behavior, and the state has no right to interfere in this process. Responsibility acts as a measure of the manifestation of social activity, which is characterized by a person’s internal demands on himself, tolerance, and conviction in the inviolability of social ideas about good and evil, justice and duty. Responsibility and value orientations encourage a person in some cases to act one way or another, i.e. to perform a specific, active and useful action, in others - to refrain from any acts of behavior, because in the public consciousness there is, as it were, a “taboo” on them as immoral offenses.
In the thirdChapter “Socio-political activity of the individual and institutional forms of its manifestation” factors influencing the political and legal activity of an individual and the forms of its manifestation are considered.
In the first paragraph “Factors influencing the political and legal position of an individual in civil society” the concept and
the meaning of an individual’s political and legal activity, analyzes what impact these factors have on the development of civil society and what an individual’s participation in politics depends on.
The participation of an individual in political activity is determined, firstly, by the social status of the individual, and secondly, by objective factors and social needs. The social status of an individual is a collective concept; it covers both the legal status of a citizen and the status of a member of a public or other association (community). In addition to social status, each person is the owner of personal status, which determines the position of the individual in terms of his assessment and perception by relatives, friends, etc., i.e. a fairly small number of people directly surrounding him.
The basis of the political and legal behavior of an individual is the principle of personal initiative, manifested within the framework of social, primarily legal, norms. In this case, the individual relies on awareness of his own value and the value of his socio-legal status. In the sphere of politics, this leads to the fact that the individual realizes the general socially significant goal of his activity, identifying himself with other people in the process of joint activity. Here we are talking about the identification of an individual with a specific political party, as well as commitment to a particular leader -
Factors influencing an individual's participation in political activity - the most important aspect of the functioning of civil society - are both natural and artificial. The first include biosocial factors associated with human nature and combining both innate and acquired qualities in the process of socialization. As for the second, we mean the sphere of free self-realization of the individual, for freedom is an artificial phenomenon that arose simultaneously with culture itself. The entire development of humanity is accompanied by a permanent process, when culture, expanding the scope of freedom, at the same time
but they are limited by norms (including legal ones), values, traditions, etc.
Among the factors influencing the social status and activity of an individual in civil society, the following should be mentioned:
1) economic - stability of the economy, development of production, growth in the material well-being of the population, increase in the ranks of the middle class, etc.;
2) political - includes the effective activities of the state apparatus, political parties and other subjects of the political system of society;
3) cultural and moral - implies the level of development of culture, science, strengthening of the moral climate in society, recognition and protection of spiritual values, features of the national mentality;
4) informational - covers the sphere of receiving and disseminating various information about the state, politics, including legal;
5) organizational - depends on the level of development and effectiveness of institutional forms of social activity of the individual.
An individual’s participation in political activity depends on: the amount of information about the subject (features of the sphere of application of the activity); the socio-psychological attitude of the individual, as well as the group to which he belongs; personal qualities of the subject of management decisions and the nature of interpersonal relationships (in parties and other public associations), if the decision is made by a collective subject. The role of the state in the formation of the political and legal activity of the individual cannot be discounted, since it is it that creates legal norms (in particular, we are talking about incentive norms) that stimulate the initiative and activity of the individual in solving state and public issues. And at the same time, it is the state that provides forms of control for civil society in the sphere of exercising state power.
For the inclusion of an individual in political activity, the legal socialization of the individual (as well as other) is of great importance. The process of legal socialization has two interconnected and interdependent sides. On the one hand, civil society itself creates a politically socialized person, assigning him the role of a passive adopter of the political experience accumulated by humanity, on the other hand, the personality constructs itself and purposefully adapts, adapts to the political and legal conditions of life, often seeking to transform them for its own purposes. Moreover, the process of political and legal socialization is not limited in time and continues regardless of the individual’s wishes.
At the same time, being a sociocultural category, law is present in everyday life and is aimed at the legal socialization of the individual. Legal socialization is a multifaceted concept. It includes a purposeful process of educating “legal feelings”, the process of forming ideals of legal behavior, the process of mastering legal values and is ultimately aimed at forming a life position by providing opportunities and prohibitions for certain actions, establishing rights and responsibilities. The institution of negative legal (classical) responsibility, which determines what evil is and what the limits of state intervention in the personal life of each person are also important for the socialization of the individual. In the course of legal socialization, the individual is introduced to the socio-legal environment, the individual chooses a variant of his behavior, assimilates the socio-political experience accumulated by humanity, and acquires personal qualities necessary for the self-realization of the individual in civil society. At the same time, law influences the consciousness and will of a person, regardless of his desire, because the real implementation of legal regulations in the activities of all institutions of civil society is reflected in the individual consciousness and receives an adequate or inadequate assessment.
This does not mean that the individual remains aloof from democratic transformations. How the formation of civil society in our country will proceed depends on the personal efforts of each individual. But for now we have to admit that human freedom and human rights in the mass consciousness have by no means acquired the meaning that they are given in the Constitution of the Russian Federation, which declared freedom and human rights to be the highest value.
The second paragraph, “The relationship between the political and legal activity of the individual and the functioning of civil society,” examines the institutional forms of manifestation of the political and legal activity of the individual in civil society.
The dissertation author proceeds from the fact that in civil society sometimes incompatible values, preferences, views of political, economic, aesthetic and other kinds coexist, as well as various political organizations. One of the features of modern civil society is the relative isolation of its components. What they have in common is that they relate to communicative phenomena, which reflect the process of interpersonal interaction, and also serve as forms of individual participation in public administration, i.e. in power.
The institutions of civil society, without possessing powers of power, nevertheless give rise to a legal system that makes it possible to combine the interests of the individual and society, to predetermine the individual’s participation in management and politics. One of the problems of forming civil society in Russia is strengthening the functional representation of citizens in all spheres, expressed in the activities of various public associations that reflect this interest. Currently, formal representation of interests in quasi-public structures is being replaced by a real unification of truly group interests. Further, the dissertation reveals the role and purpose of public associations in society:
1) a public association is created for the purpose of satisfying, protecting and self-defense of the most diverse interests of the individual and his participation in the management of state and public affairs;
2) a public association gives citizens the opportunity to communicate with interesting people, a variety of activities, promote personal self-realization and rational use of free time;
3) through various public associations, the process of formation of the interests and needs of the individual occurs. At the same time, the basis for the implementation of the right to association is personal interest, but it manifests itself, as a rule, simultaneously in more or less large groups;
4) an association of citizens pursues both general and private goals and interests and answers the question of what role various public associations play in civil society, including in political life, and what they give to the individual as a member (participant) of the association;
5) the interests of a public association are always secondary to the interests of its members (participants);
6) an individual, as a member (participant) of a public association, participates in making political decisions not directly, but through the public association itself;
7) the role of the individual in a public association lies in the fact that he carries out specific functions of the association.
Particular attention in the dissertation research is paid to political parties as the most important institution for individual participation in power. A party is a social mechanism where ideology and organizational structure serve to achieve specific political goals and translate the interests of individual social strata into the economic, legal and other policies of the state. The party contributes to the formation and identification of the political will of citizens and is an institution of self-organization of interest groups and a spokesman for public opinion, as well as the most important instrument
the volume of resolving contradictions and achieving civil harmony through compromise and consensus, as well as legalizing public discontent.
Analyzing the state of the multi-party system in Russia, the dissertation author comes to the conclusion that it is ineffective. This is evidenced, in particular, by the absence of the majority of parties of their own social base and, as a consequence, stability and influence; the absence of opposition parties and the predominance of electoral mass parties (parties of voters) that do not have a clear program and are based on ideological values; poor awareness of the programs and even the very fact of the existence of many parties; many parties, for various reasons, are focused exclusively on self-survival and confrontation with the government; the party system does not take into account the competing interests of various social groups; the creation of parties often occurs on the initiative of the state, which negates the freedom of political choice of the individual (due to this, in Russia, the manifestation of a multi-party system has neither social nor political self-identification and at the same time facilitates the implementation of state political decisions through representative bodies of all levels in the interests of the public authority itself); in the regions the role of parties is insignificant, and their numbers are extremely low.
The distinctive features of the modern Russian party system are: a) the unclear social orientation of many parties; b) the general unsystematic nature of the entire conglomerate of parties; c) intra-group struggle for leadership (power) within them and in society as a whole; d) orientation to the values of the past or the Western world or religion; e) inconsistency with the aggregation (generalization) of interests; f) the focus of some parties on the fight against power structures, and not on creative goals.
The dissertation author proposes to return to the practice of vesting public associations with the right of legislative initiative at the federal level,
for this will contribute to their activation in the implementation of the rights and freedoms of their members, increasing individual activity in political life, expanding the ability of public associations themselves to influence the state apparatus, and also analyzes the positive and negative aspects of the creation and functioning of the Public Chamber of the Russian Federation. In addition, it is emphasized that the increased activity of individuals and civil society institutions necessitates the transfer of some government functions to relevant non-state structures.
The dissertation also examines other institutions of civil society. Thus, speaking about public opinion, it should be emphasized that it is not only a very effective mechanism for the transmission of moral and other values, but is also capable of influencing certain social groups, self-government and management decisions, i.e. represents a special mechanism for public response to socially significant problems.
The personal aspects of civil society are also manifested in the fact that the individual is the subject of a number of democratic procedures that create a system of institutional guarantees of freedom and initiative of the individual, for example, by participating in elections, in other institutions of direct democracy.
The dissertation research reveals the functions of the media and analyzes their role, namely identifying and reflecting public opinion; its formation, including often in a mobilization version; directly informing the population about contemporary problems of domestic and foreign policy, etc.; dissemination of culture. At the same time, the information that the media possess and which they bring to the attention of society has as its addressee not an individual, but the entire population of either a region or a country. In this regard, such mass character also predetermines the general availability of information.
At the end of the paragraph, the dissertation reveals the essence of such forms of personal self-realization as the church, institutions of local self-government and direct democracy and concludes that civil initiative, the activity of citizens in a variety of spheres and forms of activity cannot serve as either support for the state or its opposition, but is a means of democratizing society, a barrier to its totalitarianization.
In the third paragraph “Political and legal culture - prerequisites for the formation of civil society” the role of political and legal cultures is explored (for an individual, political and legal culture are practically inseparable) in the formation of an individual’s political and legal activity in political life.
The current state of civil society as an open, self-developing system is formed under the influence of both synergetic patterns (spontaneous, spontaneous processes) and rational factors, i.e. transformative activities of all institutions of civil society. This activity is increasingly based on the principle of social metabolism - the exchange of ideas and values, including in the sphere of politics and law, which constitutes one of the aspects of political culture. Under the influence of political and legal culture, individuals perceive certain political decisions differently: some - passively, i.e. expecting and sometimes wanting political changes without doing anything for it, others are neutral, others support them (these are a minority).
Political culture and political consciousness are formed through an individual’s understanding of political reality, under the influence of the media, participation in political associations, depending on expectations from participation in elections, and the psychological attitude “to be like everyone else.” It should be noted that political consciousness does not always have the ability to be actualized directly in politics, especially since ideas about politics can be true or false.
mi. Moreover, if political culture presupposes an active principle, then political consciousness is a cognitive moment. One thing is indisputable: political consciousness and culture in civil society are based on the belief that the future of each person and society as a whole depends on the citizens themselves, but not everyone must necessarily participate in political life.
Political culture is inextricably linked with legal culture as a system of views, assessments, beliefs, and attitudes that mediate the individual’s attitude to the law and to his rights, freedoms and responsibilities. Legal culture presupposes respect for the law, a fairly high level of legal awareness and legal activity of the individual, closely related to the legal mentality of society. In this case, it is necessary to distinguish between legal activity and lawful behavior. If the first presupposes readiness to learn the law, independence and freedom of thinking, motivation of behavior and readiness for it, conviction in the need to exercise, in particular, political rights and freedoms and conscious implementation of them, then lawful behavior is, first of all, law-abiding behavior. Legal activity of an individual is always proactive, useful behavior, the result of which is the satisfaction of not only private interests, but also the interests of a particular group, the state and society as a whole. Because of this, it is creative or transformative in nature and manifests itself in all spheres of the functioning of civil society. At the same time, legal culture implies not only the exercise of rights and freedoms, but also the conscious fulfillment of legal obligations, compliance with existing prohibitions, which should turn into a habit.
The value of the legal culture of the individual in civil society lies in overcoming isolation and alienation between people and society; in readiness to resist negative phenomena and resist legal nihilism.
Nihilism is manifested in the fact that human freedom, including political or legal, is limited only by his consciousness, and human behavior itself excludes any freedom in the exercise of rights, freedoms and responsibilities. Individuals are sometimes indifferent to their subjective rights and freedoms, which is very typical of the Russian legal mentality. The legal culture of an individual is a socio-psychological readiness to exercise one’s rights and responsibilities, awareness of the need to actively act in the field of law in one’s own interests and in the interests of society.
Thus, the legal culture of an individual in modern society performs three functions: cognitive - knowledge of one’s rights, freedoms and responsibilities, processes of legal development and regulation; transformative - through the realization of their rights and freedoms, a person satisfies both his own interests and needs, as well as the interests of the state and society, and thereby contributes to legal progress; value-orientation - the development of a political or legal value orientation for a specific activity.
The fourth chapter, “Socio-legal security and guarantee of political rights and freedoms of the individual in civil society,” analyzes that part of the legal status that is associated with the participation of the individual in political activities (in the formation and functioning of state bodies, in making management decisions), as well as exercise of political rights and freedoms.
In the first paragraph “Personal rights and freedoms in the political life of civil society” the basis of democracy is considered - political rights and personal freedoms, the implementation of which presupposes the participation of a citizen in an individual or collective form in political activity (democracy) in the sphere of implementation of state
authorities and local self-government, as well as the presence of a protection mechanism necessary for the exercise of political rights and freedoms.
Law ensures the freedom of individuals and the implementation of the principle of formal equality and thereby presupposes, among other things, freedom of political participation. And this is the sphere of realization of political rights and freedoms, in the process of which, on the one hand, general interest is achieved, and on the other, political and legal socialization and self-realization of the individual occurs, i.e. private interest is realized.
Political rights and freedoms are related to the conditions of political interaction between people; reflect the advantages and disadvantages of the existing political system of a particular society; characterize the features of the organization and functioning of various forms of public authority; inseparable from citizenship. The peculiarity of political rights and freedoms is also that they are largely non-individualistic in nature and are aimed at including a person in the management of the affairs of society and the state. In the process of exercising political rights, freedoms and responsibilities, contradictions between personal and public interests are smoothed out, and sometimes their full or partial coincidence is achieved.
The existence of human society is impossible without the implementation of certain responsibilities, including in the sphere of politics. These responsibilities are both legal and moral in the form of civic duty. The balance of freedom and equality is most clearly manifested in political rights and freedoms, since their implementation does not entail pronounced social stratification. At the same time, it should be noted that actual economic or social inequality creates a reluctance among a significant part of the population to participate in political life. Considering that our society is multi-ethnic, it is necessary to create conditions that would contribute to the formation of a psychology of tolerance and the desire for compromise between different ethnic groups. In the knowledge
To a large extent, this is also achieved through equality of political rights and freedoms.
The dissertation concludes that the relationship between the individual (civil society) and the state is formed on the basis, on the one hand, of public initiative and initiative, and on the other, from the establishment of an unshakable legal order. In addition, the realization by citizens of their political rights is carried out not only on their own initiative, but also on the initiative of the state itself.
According to the dissertation author, the realization of political rights and freedoms is a manifestation of political participation. The goals of political participation are: 1) expression and coordination of various interests; 2) influence on the formation and functioning of the state apparatus, on the process of making management decisions; 3) overcoming the alienation of the individual and society from politics and the state; 4) development of the personality itself, i.e. socialization and self-expression.
In this case, political participation can be either active or passive. The active form involves voluntary and regular engagement in political activity, for example, as a deputy of representative bodies, a member of a political party, based in some cases on public (civic) duty, in others on a sense of collectivism, in others on the desire to achieve well-being in life, to improve one’s social status, including increasing your prestige. As for the passive form, this is participation in elections, referendums, etc., which, as a rule, is episodic in nature.
Thus, a society where a person feels sufficiently free to express his political will is a civil society. In this regard, the implementation of political rights and freedoms is nothing more than the conscious volitional behavior of an individual according to the formula “creation of a legal fact - the emergence of a legal relationship”, within the framework of which the individual
exercises one or another political right, for example, voting rights, the right to participate in a referendum, the right to make proposals to government bodies, the right to association, etc.
The second paragraph, “The social and legal mechanism for the implementation and protection of political rights and freedoms of the individual in civil society,” examines the process of realizing the rights and freedoms of the individual as one of the factors that ensure political activity, stimulate civil initiative and increase the social responsibility of the individual.
Particular attention in the dissertation is paid to the principle of equality as the initial legal guarantee and the legal basis of civil society. Equality comes in two forms. On the one hand, these are equal opportunities in the form of subjective rights (including their protection) provided for in the current legislation, in the presence of an equal volume of rights and freedoms. On the other hand, these are equal conditions for the exercise of these rights and freedoms, which depend on a number of factors, mainly of a non-legal nature - the level of material and spiritual well-being, education, awareness, etc. Equally important, equality also implies equal legal obligations for everyone, in particular, everyone, without exception, is obliged to comply with applicable laws. Otherwise, the principle of equal grounds for legal liability applies.
Based on an analysis of the process of realizing political rights and personal freedoms, the dissertation author concludes that in modern Russia these rights and freedoms are not properly recognized in the public consciousness. In this regard, it is necessary to develop a national concept of human rights taking into account
volume of the globalization processes taking place in the world leading to the universalization of human rights, as well as the peculiarities of the coexistence in Russia of several civilizations at the same time, pluralism of religions, national mentality, economic and political living conditions. The implementation of such a concept will contribute to adaptation, socialization, self-identification and integration of the individual in modern society. Such a concept should be based on a certain moral or political (better - moral-political) idea, which would be aimed at preserving and reproducing the traditional values of Russian society.
Thus, individual rights and freedoms embody the philosophical triad: goal - means - result. The goal is the use of certain material and spiritual benefits; a means is the instrument with the help of which the behavior of an individual is regulated and value ideas are formed; the result is not only the opportunity to satisfy one’s interests, but also the internal state of the individual, based on respect and self-esteem, confidence in the future, dignity, socialization and comprehensive self-realization.
In custody The conclusions and specific proposals of the dissertation research were systematized.
The main provisions of the dissertation are contained V following scientific works
Monographs and chapters in collective monographs
1. Rightful self-realization of the individual in civil society. M., 2007 -13 pp. (monograph).
2. Civil society and personality: political and legal aspects. M,. 2005 - 7.5 p.l. (monograph).
3. Personality and self-government. Dep. UNION dated December 311992 No. 47510 - 10.0 p.l. (monograph).
4. Territorial bodies of public amateur performances // Bodies of public amateur performances as a form of socialist democracy. M, 1985 - 3.2 p.l. (chapter in a collective monograph).
5. Constitutional rights and obligations of public associations in the field of social development and culture // Constitutional status of public associations. M., 1983 - 2.0 pp. (chapter in a collective monograph).
Articles V peer-reviewed journals
6. Personal autonomy and autonomy of civil society // State and law. 2006. No. 1 - 1 pp.
7. The relationship between the political and legal activity of the individual and the functioning of civil society // Law and Politics. 2006. No. 12 - 1 pp.
8. Law and personality in civil society // Law and state: theory and practice. 2007. No. 3 - 1 pp.
9. Rights and freedoms of the individual as a subject of political life // State and law. 2007. No. 7 - 1 pp.
10. Legal freedom of the individual in civil society // Journal Russian law. 2007. No. 5- 0.7 p.l.
11. Civil society as a multi-level system // Law and Politics. 2007. No. 5 - 1 pp.
12. On the role of law in the self-realization of the individual in civil society // State and Law. 2008. No. 6 - 0.5 p.l.
13. Social and legal mechanism for the implementation and protection of individual rights and freedoms in civil society // State and Law. 2008. No. 7 - 0.5 p.l.
Other publications
14. Personality in civil society // Phenomenology of the state. Vol. 2. M, 2004 - 1 pp. (article).
15. Social and political pluralism // Political problems of the theory of state. M, 1993 - 1 pp. (article).
16. Is it possible to achieve civil harmony in Russia: pros and cons // Law and Life. 1992. No. 3 - 1 pp. (co-authored article).
17. Public associations in the USSR. M., 1991 - 3.6 pp. (brochure co-authored).
18. Diversity of socio-political activity - the pattern of formation of civil society // Civil society and the rule of law: prerequisites for formation. M, 1991 - 0.7 p.l. (article).
19. Expansion of territorial public self-government is the most important trend in the modern development of the political system of socialism // Councils in the context of political system reform. M., 1989 - 1.2 pp. (co-authored article).
20. Personality and socialist self-government of the people // Political system: issues of democracy and self-government. M., 1988 - 1 pp. (article).
21. On the role of the individual in self-government // Soviet State and Law. 1989. No. 1 - 0.1 p.l. (round table).
22. Guarantees for informals. // Literary newspaper. 1989. September 13 -0.2 p.l.- (round table).
23. Public forms of self-government at the place of residence // Soviet State and Law. 1988. No. 2 - 0.5 p.l. (co-authored article).
24. House, street and block committees: organizational and legal aspects of activity // Public organizations and public amateur bodies. M, 1985 - 1 pp. (article).
25. Bodies of public initiative // Soviet state and law. 1984. No. 5. - 0.5 p.l. (co-authored article).
26. Mass public organizations and youth // State, law and youth. M., 1985 - 0.5 p.l. (article).
27. The role of public organizations in solving social and cultural problems // Public organizations in the conditions developed socialism. M., 1982 - 1 pp. (article).
28. Public organizations, law and personality // Soviet state and law. 1978. No. 6. - 0.2 p.l. (scientific communication)
See, for example. Goffman A.B. Does society exist? From psychological reductionism to epiphenomenalism in the interpretation of social reality // Sociological Research 2005. No. I. P. 18-25.. Human rights and modern state and legal development. M., 2007; she is the same. Three generations of human rights as different forms of mediation of freedom // Philosophy of law in Russia: origins and modernity. Materials of the third philosophical and legal readings in memory of academician B.S. Nersesyants. M.. 2009.
See for example: Glukhareva L.I. Human rights in the modern world: socio-philosophical foundations and state legal regulation. M., 2003; she is the same. Methodological aspects of the development of the theory of human rights // State and law. 2006. No. 3
See for example: Grafsky V G Personal rights: a new interpretation of the well-known philosophical and legal formula is necessary // Human rights and modern state and legal development. M., 2007; aka. Human and civil rights in the history of Russia // Eckstein Fundamental rights and freedoms in the Russian Constitution and the European Convention. M., 2004.
See for example: Kalashnikov E.V. Constitutional foundations for the formation of civil society in the Russian Federation: Diss... doc. legal Sci. M., 2001; Wet V.S. Local self-government in the Russian Federation as an institution of public authority and civil society: Diss... doc. legal Sciences.. M., 2003. The doctoral dissertation is devoted to the problem of the revival of civil society in Russia and the reflection of these processes in the sphere of labor (A.F. Nurtdinova. “Collective contractual regulation of labor relations: theoretical problems.” M., 1998).
See for example: Vlasova O.V. The role of public associations in the formation of civil society in Russia: Diss. Ph.D. legal Sci. Saratov, 2003; Khudyakov S.S. Legal foundations of the relationship between civil society and the state: Diss. ...cand. legal Sci. Tambov, 2003; Vlaznev V.N. Civil society as a subject of constitutional and legal research: Diss. ...cand. legal Sci. M„ 2002; Baranov P.P. Institutions of civil society in the legal space of modern Russia: Diss. ...cand. legal Sci. Rostov-n/D, 2003; Vypryazkina Zh. N. Political and legal transformation of civil society institutions in the context of globalization: Diss. ...cand. legal Sci. Rostov-n/D, 2005; Kurmaev R.M. Public Chamber of the Russian Federation as an institution of civil society: Diss. ...cand. legal Sci. Volgograd, 2006.
Most constitutions of foreign countries also do not have special sections devoted to civil society, although its most important institutions are enshrined.
The constitutional legislation of the constituent entities of the Russian Federation often contains a broader list of rights and freedoms than is provided for by the Constitution of the Russian Federation.
Information updated:30.06.2010
Related materials:| Persons | Defense of dissertations
The author argues that “For the protection of human rights, the extension of international humanitarian law to non-international armed conflicts is important.” Based on knowledge of the social science course, other academic disciplines and social experience, give three arguments confirming the author’s point of view.
International humanitarian law consists of two sections called the “law of the Hague” and the “law of Geneva”. Historically, the primary one is the “law of the Hague”, or “law of war”, which establishes the rights and obligations of the warring parties during combat operations and limits the methods and means of causing damage to the enemy in order to avoid excessive suffering, unnecessary, as well as unjustified by military necessity, casualties and destruction. .
A new stage in the development of international humanitarian law, which was based on the principles and norms of the human dimension, came after the adoption of the UN Charter, which outlawed war... The same period saw the intensive development of Geneva law, the birth of a regulatory framework which is usually associated with the Geneva Convention of August 22, 1864, for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field during a Land War. This document introduced a new and very important principle of neutrality of medical personnel into the international law of that time, according to which medical care should be provided to all injured participants in hostilities, regardless of which side they fought on. The principle of maintaining a strict balance between the requirements of humanity and military necessity was established...
IN modern form Geneva law, or humanitarian law itself... is a system of principles and norms directly aimed at protecting the individual in armed conflicts of international and internal character. International humanitarian law provides protection to those not taking part in hostilities, such as civilians and medical personnel. Under its protection are also persons who have stopped participating in hostilities, namely: the wounded, shipwrecked, sick and prisoners. Geneva law prohibits attacks on persons under its protection, violation of their physical integrity, and subjecting them to humiliating and degrading treatment. Rules have been developed to provide prisoners of war and those detained during the conflict with the necessary food, housing, and judicial guarantees.
With the development of international rule-making and the adoption of new documents in the field of human rights, international humanitarian law is enriched with principles and norms that guarantee an individual the right to enjoy fundamental rights and freedoms during armed conflicts, minimizing the disasters caused by armed actions and protecting people from arbitrariness and violence...
For the protection of human rights, it is important to extend the application of international humanitarian law to armed conflicts of a non-international character, which are limited to the territory of one state and occur between armed forces and anti-government armed groups...
(I.A Ledyakh)
What two branches make up international humanitarian law? Give them a brief description.
Explanation.
1) the sections are named: “the law of the Hague” and “the law of Geneva”;
2) their characteristics: “The Law of the Hague”, or “the law of war”, establishes the rights and obligations of the warring parties during military operations.
The Law of Geneva established the principle of maintaining a strict balance between the requirements of humanity and military necessity.
Answer: None
Based on social science knowledge, explain the meaning of the concept “regulatory legal act”. Based on the text, name four categories of subjects of international humanitarian law to whom it provides protection.
Explanation.
The correct answer must contain the following elements:
1) the meaning of the concept: a normative legal act is an official document issued in the prescribed manner by a competent government body, containing rules of law and protected by the state under the threat of applying legal liability measures for its violation.
(Another explanation similar in meaning may be given)
2) any four of the listed categories of legal entities:
Civilian population;
Medical personnel;
Wounded;
Shipwrecked;
Sick;
Prisoners.
Elements of the answer can be given in a different form that is similar in meaning.
Answer: None
Subject area: Law. International law
The author of the text shows the history of the emergence of certain rules of law in international humanitarian law. Based on the text, name three rules of law that protect human rights. Illustrate each of them with an example.
Explanation.
The correct answer must contain the following elements:
rules of law that protect human rights and examples illustrating them, for example:
Medical assistance should be provided to all injured participants in hostilities, regardless of which side they fought on. For example, during one of the battles between the states of X and Z, after the withdrawal of enemy troops, wounded soldiers remained on the battlefield, medical personnel provided assistance to them despite the fact that they were fighting against their state;
Prohibition of attacking persons protected by international humanitarian law, violating their physical integrity, or subjecting them to humiliating and degrading treatment. For example, during the war, the state of X. occupied part of the territory of another state, the soldiers of the state of X. were given clear instructions on how to behave with the civilian population and that they would be held accountable for attempts at violence;
Providing prisoners of war and those detained during the conflict with the necessary food and housing. For example, during an armed conflict between two countries, a group of soldiers were captured, they were given a specially equipped barracks to live in and were fed three times a day;
Elements of the answer can be given in a different form that is similar in meaning.
Answer: None
Subject area: Law. International law
Explanation.
The correct answer must contain the following arguments:
In non-international armed conflicts, all subjects of international humanitarian law are present;
Compliance with the norms of international humanitarian law in regulating internal conflicts indicates the development of the level of legal culture of society;
Compliance with the norms of international humanitarian law in regulating internal conflicts is directly related to the observance of human rights in a given country.
Elements of the answer can be given in a different form that is similar in meaning.
Answer: None
Subject area: Law. International law
The law prohibits censorship of the media. At the same time, polls recent years showed that a considerable part of the population in our country would welcome the introduction of censorship, especially on television. Based on your own social experience, knowledge from the social science course, suggest what exactly viewers would not like to see on television (indicate two topics) and why (indicate any one reason).
Read the text and complete tasks 21-24.
Art. 2. Mass media. Basic Concepts
Mass information means printed, audio, audiovisual and other messages and materials intended for an unlimited number of people;
mass media means a periodical printed publication, radio, television, video program, newsreel program, other form of periodic dissemination of mass information;
a periodical printed publication means a newspaper, magazine, almanac, bulletin, or other publication that has a permanent name, current issue and is published at least once a year;
a radio, television, video, newsreel program is understood as a set of periodic audio, audiovisual messages and materials (programs), which has a permanent name and is published (broadcast) at least once a year;
mass media products mean a circulation or part of a circulation of a separate issue of a periodical printed publication, a separate issue of a radio, television, newsreel program, a circulation or part of a circulation of an audio or video recording of a program;
Distribution of mass media products means the sale (subscription, delivery, distribution) of periodical printed publications, audio or video recordings of a program, broadcast of radio and television programs (broadcasting), demonstration of newsreel programs...
Art. 3. No censorship
Censorship of the mass media, that is, the requirement from the editorial office of the mass media on the part of officials, state bodies, organizations, institutions or public associations to pre-approve messages and materials (except for cases when the official is the author or interviewee), as well as imposing a ban on the dissemination of messages and materials, their individual parts are not allowed.
The creation and financing of organizations, institutions, bodies or positions whose tasks or functions include censorship of mass information is not permitted.
From the law
RF “On the media”
What does the law mean by mass media? Using your social experience, give one specific example each of print and electronic media.
Explanation.
1) The answer must indicate that mass media means the form of its distribution, in particular, a printed periodical, radio, television, video program, newsreel.
2) Examples of media:
Examples of print media include the newspapers Izvestia, Komsomolskaya Pravda, etc.
Examples of electronic media include television programs “Time”, “Today”, etc.
The document reveals the concept of censorship; indicate, based on the text, two of its characteristics. Based on social science knowledge, explain the meaning of the concept of “freedom of speech.”
Explanation.
1. The answer must indicate the following characteristics:
1) the requirement to pre-approve materials;
2) imposing a ban on the distribution of materials.
2. The concept is disclosed, for example: the right guaranteed by the Constitution of the Russian Federation to freely seek, receive, transmit, produce and disseminate information in any legal way.
Subject area: Law. Rights and freedoms of man and citizen
For a number of years, the annual poetic almanac “Pegasus” has been published in Moscow, with a current issue and a circulation of 5 thousand copies. Can this publication be classified as mass media? Based on the features of print media given in the text, justify your answer. First indicate the sign, then the explanation. (A total of three signs and three explanations must be given).
Explanation.
1) The answer must contain an affirmative answer to the question posed.
2) The arguments are the features of this publication, to which explanations are given:
Frequency (the almanac “Pegasus” is published once a year);
Permanent title (the almanac has a permanent name - “Pegasus”);
Availability of a current number (the Pegasus almanac has a current number).
Subject area: Law. Rights and freedoms of man and citizen
Explanation.
1. The following topics can be named:
Violence (films, TV shows, replete with scenes of fights, murders);
Explicit erotica (pornography).
2. The following statements can be used as reasons:
Constant display of scenes of violence increases aggressiveness in society (especially among teenagers) and devalues human life;
Sexual permissiveness on television gives rise to the same in life, especially among adolescents and young people, with all the negative consequences of this for the individual and society.
Other reasons for the desire of a significant part of society to limit this topic on television screens can also be indicated.
Subject area: Law. Rights and freedoms of man and citizen
The author claims that “perfect legal awareness testifies to a high general and legal culture of an individual, making him a full-fledged participant in various legal relations.” Based on knowledge of the social science course, other academic disciplines and social experience, give three arguments confirming the author’s point of view.
Read the text and complete tasks 21-24.
Structurally, legal consciousness consists of two elements: scientific legal consciousness (legal ideology) and ordinary legal consciousness (legal psychology).
1. Legal ideology is a system of views and ideas that in theoretical form reflect the legal phenomena of social life. Theoretical reflection of legal ideas and views is contained in scientific research on issues of state and law, their essence and role in public life. Since they contain objective conclusions and generalizations, this allows the state and its bodies to effectively use them in law-making and law enforcement activities.
2. Legal psychology is a set of feelings, habits, moods, traditions that express the attitude of various social groups, professional groups, and individuals to law, legality, and the system of legal institutions functioning in society. Legal psychology characterizes those experiences, feelings, thoughts of people that arise in connection with the publication of legal norms, the state of current legislation and the practical implementation of its requirements. Joy or sadness after the adoption of a new law, a feeling of satisfaction or dissatisfaction with the implementation of specific norms, an intolerant or indifferent attitude towards violations of legal regulations - all this relates to the field of legal psychology.
Legal awareness plays an important role in the improvement and development of the legal life of society.
Firstly, legal awareness is a necessary factor in the creation of legal norms... Secondly, legal awareness is an important and necessary condition for the accurate and complete implementation of legal norms...
There is a sense of justice important factor development of legislation, stability of law and order, reality of rights and freedoms of citizens. Perfect legal awareness also indicates a high general and legal culture of the individual, making him a full participant in various legal relations.
(V.N. Khropanyuk)
Indicate two elements of legal consciousness that the author names?
Explanation.
The correct answer must include two elements:
Scientific legal consciousness (legal ideology);
Ordinary legal consciousness (legal psychology).
Based on the text, indicate two characteristics of legal psychology. Based on social science knowledge, explain the meaning of the concept “legal culture of the individual.”
Explanation.
The correct answer must contain the following elements:
1) Characteristics of legal psychology:
The attitude of various social groups, professional groups, and individuals to law, legality, and the system of legal institutions is expressed;
Characterizes those experiences, feelings, thoughts of people that arise in connection with the publication of legal norms, the state of current legislation and the practical implementation of its requirements.
2) Explanation of the meaning of the concept, for example:
The legal culture of an individual is the subjective attitude of an individual to the law, the totality of his legal knowledge in the form of norms, beliefs and attitudes created in the process of life.
Elements of the answer can be given in a different form that is similar in meaning.
Subject area: Law. Law in the system of social norms
The author of the text says that “the content of legal psychology and the level of its maturity are significantly influenced by the introduction into people’s consciousness of scientific ideas about the legal phenomena of social life.” Give three examples of such “insertion into consciousness.”
Explanation.
The correct answer must contain the following elements:
Examples of implementation:
In the Russian Federation, it is mandatory to study legal issues in school;
Creation of educational and thematic programs by the media, for example, “Hour of Judgment”;
Discussion of current legal issues in news programs, for example, Russian federal channels regularly report on new laws, and authoritative lawyers are invited to comment on them;
Elements of the answer can be given in a different form that is similar in meaning.
Subject area: Law. Law in the system of social norms
Explanation.
The correct answer must contain the following arguments.
A person with perfect legal consciousness considers his actions as legal relations;
A person with a perfect sense of justice knows how to correlate his rights and responsibilities with the rights and responsibilities of other participants in legal relations;
A person with perfect legal awareness can foresee the legal consequences of his own and others’ actions.
Can be given in other arguments.
Subject area: Law. Law in the system of social norms
“is an important condition for the development of a democratic society.” Based on your knowledge of the social science course and your life experience, give three arguments confirming the author’s correctness.
Read the text and complete tasks 21-24.
The complex connections that arise between the state and the individual, and the relationships of people with each other, are fixed by the state in legal form - in the form of rights, freedoms and responsibilities that form the legal status of a person and a citizen. Rights and responsibilities not only set out patterns and standards of behavior that the state considers obligatory, useful, and appropriate for normal life social system, but also reveals the basic principles of the relationship between the state and the individual. The relationship between the state and the individual requires clear regulation and orderliness. This is due to the particular importance of this kind of relationship for maintaining the existing system, for its normal functioning.<...>Legal status consists of subjective, including procedural rights: to appeal to government bodies with complaints and petitions, to protect one’s rights and freedoms by all means not prohibited by law, to appeal to court, to interstate protection bodies, and others. The state does not secure individual rights arbitrarily; it legally formalizes natural human rights, as well as a set of rights for the implementation of which socio-political prerequisites have been formed, arising from real social relations.<...>Society and the state are far from indifferent to how a person realizes the opportunities enshrined in legislation; they are interested in the activity of the individual, which is an important condition for the development of a democratic society.<...>The Constitution of the Russian Federation declares that in the Russian Federation “the rights and freedoms of man and citizen are recognized and guaranteed in accordance with generally recognized norms and norms of international law.” This provision of the Constitution gives grounds to understand the legal status of a person and a citizen of Russia as a single set of domestic and international norms containing the rights and freedoms of citizens.
Explanation.
The response may include the following arguments:
1. The complex connections that arise between the state and the individual, and the relationships of people with each other, are fixed by the state in legal form - in the form of rights, freedoms and responsibilities that form the legal status of a person and a citizen.
2. The Constitution of the Russian Federation proclaims that in the Russian Federation “the rights and freedoms of man and citizen are recognized and guaranteed in accordance with generally recognized norms and norms of international law.”
Subject area: Law. Rights and freedoms of man and citizen
Explanation.
1) The correct answer must include any three procedural rights from the text:
To contact government authorities with complaints and petitions;
To protect your rights and freedoms by all means not prohibited by law;
To go to court, to interstate defense bodies.
2) The concept is explained, for example: procedural law is a set of branches of law that regulate the procedure of legal proceedings, the rights and obligations of participants in the trial.
Subject area: Law. Rights and freedoms of man and citizen, Law. Russian legal system, legislative process
The author argues that “the state does not secure individual rights arbitrarily; it legally formalizes natural human rights, as well as a set of rights for the implementation of which socio-political prerequisites have been formed, arising from real social relations.” Based on the text, knowledge of the social science course and knowledge gained from other social disciplines, name three socio-political prerequisites necessary for the legal registration of natural human rights.
Explanation.
The answer may include the following prerequisites.
The doctrine of failure of consideration plays an important role in classical English contract law and is widely used in judicial practice. It is an original institution of case law and has no direct analogue in continental law, but its provisions must be taken into account when drawing up contracts with a foreign element, subject to the law of England and Wales. Knowledge of the basic provisions of the doctrine of loss of consideration also allows one to assess possible legal risks arising when considering disputes over international transactions governed by English law.
The subject of consideration of the doctrine of loss of consideration is defects in contractual relations that prevent the parties to the contract from receiving benefits or fulfilling obligations. This doctrine occupies a special place in the judicial process when determining the grounds for violation, termination or nullity of a contract, as well as when the court chooses a specific remedy for the injured party. In this regard, even before filing a claim, depending on the specific circumstances of the violation of contractual relations, the plaintiff should determine whether there was a loss of consideration and in what form it was expressed in order to correctly substantiate his claims in court.
The basis of the doctrine of non-compliance is a fundamental institution of English law - the institution of consideration. In judicial practice, consideration means some right, benefit or benefit received by one party, or a limitation of the right, loss, loss, or liability that the other party bears or accepts (Currie vs. miza, 1875). English contract law proceeds from the fact that, by agreement, the debtor would not have accepted the obligation to perform certain actions if he had not received certain benefits from the creditor for this. Thus, the basis of the institution of consideration is the principle of quid pro quo, which means that consideration must be provided by the debtor in exchange for the promise of the creditor, i.e. there is reciprocity of counter-promises of the parties.
For the purposes of this article, it is important to note that consideration is a necessary element of a simple contract, password contract, i.e. any contract made orally or in simple written form. Unlike a contract under seal (contract by deed, contract under seal), the validity of which is determined solely by its form and the terms of which, in accordance with the law, cannot be disputed, the enforcement of a simple contract is impossible if the parties have not provided each other with consideration.
To be able to enforce the rights from the contract, the consideration must be proper, valid, i.e. meet certain criteria:
Be legal;
. arise from a specific agreement between the parties;
. come from one party to the contract in favor of the other, i.e. comply with the doctrine of contractual connection (privacy of contract), according to which mutual rights and obligations under the contract arise only among its participants (the doctrine of contractual connection will be discussed in more detail below);
. have a certain value, not necessarily equivalent to a reciprocal promise;
. not to be the past (past), i.e. completed before the conclusion of the contract.
Failure of consideration
English law does not provide a clear definition or interpretation of the doctrine of loss of consideration, enshrined in statutes or judicial decisions. As already noted, it is based on the institution of reciprocal satisfaction. Let's give an example of an appropriate condition for consideration: party A gives party B a promise that has a certain value for it (party B) in exchange for benefits received from party B that have a certain value for party A. In other words, the condition of remuneration of the contract is met .
The disappearance of consideration is demonstrated by the following situation: party A makes a promise to party B in exchange for a counter-promise, which party B does not fulfill. The counter-satisfaction is also said to be no longer valid if the counter-promise of party B is to provide party A with property specified in the contract, but during the execution of the contract it turns out that such property does not exist or does not meet the qualitative and quantitative characteristics established by the contract.
In a broad sense, the loss of consideration is understood as a basis for the termination of fulfillment of obligations under the contract, its termination or recognition as not concluded (depending on the form in which the waiver is expressed).
At the same time, evidence of the loss of consideration in court belongs to the category of statements of facts that refute the claim or accusation (affirmative defense). Having proved the validity of such a statement in court, a party has the right to refuse to fulfill the demands of the other party even if they are valid and lawful. For example, the defendant’s statement that the failure to perform the contract arose as a result of the loss of consideration due to him from the plaintiff is sufficient for the court to refuse to satisfy the plaintiff’s demands to recover from the defendant the losses incurred by the plaintiff. In such a situation, the court may apply restitution to restore the parties’ position to the previous one (which was before the conclusion of the contract).
The main forms of loss of consideration
Traditionally, English jurisprudence and legal doctrine distinguish three main forms of loss of consideration:
1) lack of consideration;
2) failure to fulfill contractual obligations;
3) impossibility of fulfilling the contract.
Some English legal scholars do not consider the lack of consideration and failure to fulfill contractual obligations to be forms of loss of consideration, citing the fact that in the first case the contract is considered not concluded, and in the second, consideration is provided, but with violations of the contractual terms. At the same time, the loss of consideration is considered by them exclusively as a basis for restitution in the context of the doctrine of the same name and is applied only if the terms of the contract are no longer applicable or are insufficient to restore the violated rights of the injured party.
Lack of consideration or failure ab initio
The absence of consideration means that the contract concluded by the parties is void from the moment of conclusion, i.e. initially (void ab initio).
Consideration is a mandatory condition of a simple contract, and if it is absent at the time of its conclusion, it is considered that the contract has not been concluded, therefore, the parties are not subject to contractual rights and obligations.
Proper consideration may not be available:
Due to a party error (mistake);
. due to fraud or duress;
. if the promised consideration is contrary to law.
Due to the nullity of such an agreement, the parties are not obliged to fulfill the obligations arising from its terms, and if the plaintiff has fulfilled part of it, then he has the right to go to court with a demand for a return to the original position (restitution). In this case, since the contract did not originally exist, the injured party does not have to prove the non-receipt of consideration (no consideration). The basis for filing a claim will be the reason why the contract is considered not concluded (error, fraud, coercion or illegality of the agreement).
Failure of performance
Failure to fulfill contractual obligations occurs if the contract is concluded and it provides for due consideration, but one of the parties does not perform the promised actions. In this case, the contract continues to be in effect, and the injured party has the right to apply the penalties established by it. In a breach of contract claim, the plaintiff may seek damages from the defendant. Restorative remedies are available only in exceptional cases where the defendant's violation involved misconduct.
Inability to complete a deal (collapse of bargain)
The impossibility of completing a transaction occurs when a party’s failure to provide consideration leads to the impossibility of the other party continuing to perform the contract, which has partially or fully fulfilled its contractual promises. At the same time, the contractual regime does not allow the restoration of the rights of the party whose interests were violated by the loss of consideration. In this case, we are talking about undue enrichment of the party that violated the contract. English legal doctrine is based on the following. The injured party did not receive what it expected to receive. If the transaction is completed, i.e. performed in whole or in part by the injured party and not performed by the other party, the rules on restitution may be applied to such a transaction.
Possibility of using restitution as a judicial defense in the event of loss of counter-satisfaction
If consideration disappears and it is impossible to continue the contract, the injured party may be more interested not in compensation for losses arising from the termination of the transaction, but in the return of those benefits that have already been transferred to the violating party. In this case, we are talking about the right of a party to sue for the purpose of fair compensation (quantum meruit), i.e. returning the injured party to the position in which it was before the conclusion of the contract - the right to restitution. Such a claim may be brought by an injured party who fulfilled its obligations under the contract in good faith, but stopped fulfilling them due to non-receipt of consideration and therefore considers itself no longer bound by the obligations under the contract.
The failure of consideration will serve as grounds for filing such a claim. To apply restitution, it is necessary that the contract be valid (not void) and executed (executed contract), i.e. the obligation arising from it must be fulfilled in whole or in part by one of the parties, and the contract ceased to be operative due to the complete or partial loss of consideration.
Complete or partial loss of consideration
Modern English doctrine distinguishes between total failure of consideration and partial failure of consideration. It is worth noting that the partial loss of consideration has only recently begun to be recognized as a basis for the application of restitution. Previously, the courts satisfied quantum meruit claims based on the loss of consideration only if it was not fully provided by the defendant. At the same time, it was not taken into account that partial provision of consideration may also prevent the plaintiff from receiving in full what he was counting on if the contract had been executed.
Total failure of consideration means that the promise, in exchange for which the plaintiff transferred certain benefits to the defendant, was not fully fulfilled by the defendant.
It is necessary to pay special attention to the following. The complete disappearance of consideration implies that the plaintiff did not receive any benefits from the defendant in the transaction. Let's give an example: the plaintiff paid for the rent of the premises with the condition that the defendant would make the necessary repairs before the start of the lease. However, the defendant does not carry out repairs, and the plaintiff begins to use the rented premises. In this situation, it is considered that the plaintiff receives certain benefits in the form of the right to use the premises, and the condition regarding the complete elimination of consideration is not met.
On the contrary, the complete loss of consideration will occur if, after the conclusion of the contract and the prepayment of rent, the premises are destroyed by fire before the plaintiff takes possession of the rented premises.
Partial failure of consideration occurs when the plaintiff, having fulfilled his promise, receives part of the benefits that the defendant undertook to provide him under the contract. In such a situation, the plaintiff has the right to file a claim for restitution due to the partial loss of consideration. The main feature of the partial waiver of consideration is that in the event of a restitution claim on the part of the plaintiff, the defendant has the right to counter restitution in respect of the benefits received by the plaintiff.
There are exceptions to the rules on partial waiver of consideration, for example, if the plaintiff received benefits that do not correspond to the terms of the transaction. Consider the situation: the plaintiff purchased an item and used it for some time, and then it was discovered that the item was stolen and it was returned to the rightful owner. In this case, there is a complete loss of consideration, since the plaintiff did not receive the benefit he expected, namely the legal right of ownership of the thing.
Another example of an exceptional situation is if the contract is to be executed in parts. In this case, the principle of complete elimination of consideration may be applied to individual unfulfilled parts of the contract. So, if the agreement provides for payment in three tranches, but only one is paid, then in relation to the remaining two we can talk about the complete disappearance of consideration.
When executing cross-border contracts for the international purchase and sale (supply) of goods with English counterparties, it is necessary to remember the principles of complete or partial elimination of consideration. Since the UK is not a party to the 1980 Vienna Convention on Contracts for the International Sale of Goods, if the contract establishes the applicable English law, the parties should consider the possibility of quantum meruit in respect of each individual delivery of goods or each tranche. This is especially important when compensation for damages for partial non-performance is not enough to protect the interests of the party that has fulfilled its obligations under the contract in good faith.
Doctrine of privacy of contract
The doctrine of contract is directly related to the doctrine of consideration, which must be given by a party in exchange for the promise of the other party. Thus, only the claim of the party that provided the consideration can be enforceable.
The doctrine of contractual connection provides for the emergence of rights and obligations under the contract only among its participants, i.e. It is between them that a contractual relationship is formed. Accordingly, only the parties to the contract can file a claim in defense of their claims. This principle was reflected in judicial practice in the case of Dunlop pneumatic tire Co. Ltd. vs. Selfridge & Co. Ltd. (1915), where it was also noted that English law does not know the right of third parties to claim protection (jus quaesitum tertio). The main problem associated with the application of the contractual connection doctrine is that a third party does not have the right to claim compensation for losses caused to it by a party’s failure to perform under the contract. An example is the following situation.
Parties A and B have entered into an agreement, according to which A undertakes to pay a certain amount in favor of a third party C. If party A fails to fulfill its obligations, party C has no right to bring claims against it. This right is granted only to Party B, even if it has not suffered any losses.
English law recognizes a number of exceptions to the general contractual rule that allow Party C to circumvent the limitations of this doctrine. In fact, these are not even exceptions, but the possibility of applying other institutions of English law to the relationship between the parties to the contract and third parties, which would make it possible to protect the violated rights of third parties. Such exceptions include:
Related contract (between a third party and a party to the contract). If one of the parties to the main agreement has concluded a separate agreement with a third party regarding the same subject as the main agreement;
. agency relations. If one of the parties to the contract acts as an agent of a third party
(principal), then either the agent or the principal (third party) has the right to judicial protection from such a contract;
. institution of trust property (trust). If the relationship between a third party and a party to an agreement is qualified as a trust, this third party (beneficiary) is given the right to demand the execution of such an agreement. In this case, the trustee - a party to the agreement and the other party to the agreement who has not fulfilled its obligations - are joint and several defendants in the claim of a third party (beneficiary);
. assignment of rights or delegation of duties. In case of assignment of the rights of a creditor under an agreement in favor of a third party (assignee), the rights of the assignor arising from the agreement are terminated, and the third party acquires the rights of claim. Accordingly, when delegating the debtor’s obligations under the contract to a third party, the latter must fulfill them. If a third party fails to fulfill the obligations delegated to him, the creditor has the right to demand their fulfillment by the original debtor;
. restrictive covenants. Agreements between the seller of a land plot and the owners of neighboring plots or other types of restrictive obligations apply to both the first purchaser of the plot and all subsequent purchasers;
. unjust enrichment. As already noted, by the time a claim for quantum meruit is filed demanding the application of the rules of restitution, the contract must be terminated (ceased to be operative) due to the disappearance of consideration. A third party may file a claim for restitution against the parties to the contract, since the right to claim quantum meruit is determined not by the contract and the existence of a contractual connection, but by the fact of unjust enrichment of the defendant.
In 1999, the doctrine of contractual connection was legislatively limited by the Law “On the Protection of the Rights of Third Parties” (Contracts (Rights of third parties) act, 1999), according to which a third party who is not a party to the contract has the right to judicial protection of its claims in two cases:
1) if the contract directly states this right of a third party;
2) when, based on the interpretation of the contract, such a third party receives certain benefits as a result of its execution. In this case, it can also demand execution of the contract in court, but only if the contract does not provide otherwise.
This law introduces certain relaxations into the contractual relationship doctrine, but does not allow us to completely eliminate the rule of extending judicial protection only to the parties to the contract due to the discretionary nature of its provisions. In other words, even if a third party can claim certain benefits under the terms of a contract, the third party's right to enforce those terms may be limited by that same contract.
In practice, the restrictions established by the doctrine of contractual connection force the drafters of cross-border contracts subject to English law to spell out in detail the rights and obligations of third parties. Often, third parties receiving benefits as a result of the execution of a contract or bearing certain obligations are indicated as parties to the contract to eliminate possible problems with determining the existence of a contractual connection in the performance of agreed obligations.
