He also insisted on the need to expand prosecutorial oversight of the judiciary.

So, Hegel:

praised the state as the most developed real freedom; considered the proper separation of powers in the state as a guarantee of individual freedom; criticized despotism, believing that "… a state of lawlessness in which the special will as such, whether the will of the monarch or the people (ochlocracy), has the force of law, or, rather, replaces the law"; defined its construction of the rule of law as one that is clearly directed against arbitrariness, lawlessness and against all non-legal forms of force, both by individuals and by the state.

The doctrines of the rule of law in Russia and Ukraine emerged in the second half of the nineteenth century, after the bourgeois reforms of the 1960’s and 1970’s. They were reflected in the documents of Russian liberalism and the opposition zemstvo. This theory began to be developed in more detail at the beginning of the 20th century, with the transition of the Russian Empire to constitutional autocracy. Scientists actively worked in the direction of creating the theory of the rule of law: OS Alekseev, VM Hesse, B.O. Kistyakivsky, MM Korkukov, S.O. Kotlyarevsky, IM Lazarevsky, MA Reisner, G.F. Shershenevich and others.

One of the first theorists whose work on the problems of the rule of law was published, were MA Reisner, who published the article "What is the rule of law" and V.M. Hessen, who published the work "Theory of the rule of law" MA Reisner, for example, qualified the rule of law as one where the state system, the law is "… a norm binding on the government itself" where every act of state power is subject to the law and the same law ensures the inviolability of the rights of individuals and public corporations.

V.M. Hessen believed that the rule of law in its activities, in the exercise of governmental and judicial functions is bound and limited by law, is under the law, not outside or above it.

The theory of the rule of law was based on the theory of the division of power by Sh.-L. Montesquieu, giving it a kind of interpretation taking into account the n practice of state and legal construction. In their understanding, state power is the only one, but it divides functions between the legislative, executive and judicial bodies. But at the same time, Russian and Ukrainian scientists have rejected such classic elementssilt of power as a deterrent and counterbalance. They justified the supremacy of the legislature and its subordination to the executive and judiciary. For example, V.M. Hesse tried to distinguish between law and governmental order according to their legal force, proving the supremacy of law as an essential feature of the rule of law.

O.S. Alekseev believed that there could be no change in the legal order without the participation of the people’s representation. The connection of state power with the law from which the legislator derives legislative norms, based on the fact that it is not the law that gives the force of law, but the law gives force to the law, and is, in his opinion, the basis of the rule of law. He, like VM Hessen argued that a truly democratic state governed by the rule of law should only be parliamentary.

The need to subordinate the government and its activities to legal norms was recognized and substantiated by B.O. Kistyakivsky, criticizing LF IPtein, who assumed that within certain limits the government in a constitutional state is not bound by law.

Criticizing the concept of SO Kotlyarevsky, who believed that power as a force that serves the self-preservation of the state, can act as necessary, deviating from the principles of law, B.O. Kistyakivsky wrote that in a fully developed state governed by the rule of law, strong power is the power of pure law; it is strong in the power and balance that guarantee it strict observance of the rule of law by both the rulers and the subordinates. He criticized the revolutionary theories that justified violence, seeing the state mechanism as force, not law.

An important principle of the theory of the rule of law both then and today was and remains the effective provision of human and civil rights and freedoms.

These questions were the subject of research by Ukrainian and Russian scientists OF Kistyakivsky, EV Vaskovsky, MI Palienka, FV Taranovsky, MP Dragomanova, M.S. Hrushevsky and others.

For example, OF Kistyakivsky justified the need to ensure the independence of the court from the interference of administrative authorities and proposed a system of organizational and legal measures.

E.V. Vaskovsky highlighted the main role and purpose of the bar in the mechanism of protection of individual rights and freedoms. He also insisted on the need to expand prosecutorial oversight of the judiciary.

E. Palienko considered the problem of sovereignty as one of the properties of the rule of law, which is manifested in the ability of the state to have its own constitution, to decide independently on economic issues, politics, including foreign affairs.

According to VS Hessen, a citizen in relations with the subordinate governmental authority must act as a subject of law, and not as an object of power, its subject, as is the case in an absolute monarchy.

So, summing up, we can say:

the history of the doctrine of the rule of law covers a system of ideas, opinions and concepts (foreign and own authors) without the knowledge and consideration of which it is impossible to theoretically develop the concept of the rule of law; without a theoretical model, the rule of law cannot be put into practice during the development of statehood and the legal system in Ukraine; important in the creation of a regulatory framework based on the new Constitution of Ukraine is the experience of enshrining in constitutional law the basic principles of the rule of law, which are legally enshrined in the legislation of other countries; using the method of historicism, one should take into account the experience of the past, its positive and negative aspects, so as not to make mistakes in building a socially responsible state in Ukraine.

September 26, 2010

Guarantees of human rights in national and international legal systems

The practical realization of human and civil rights and freedoms requires certain guarantees – a sufficient level of economic, social and cultural development of society, reliable legal protection, including – the ability to seek protection from international legal organizations.

A special type of guarantees for the realization of human rights and freedoms is the legal activity of the subjects.

Economic guarantees of human and civil rights and freedoms are social market economy, equality of ownership, freedom of entrepreneurial activity, high level of labor productivity and economic development of society, which allows to ensure the welfare, decent standard of living and social protection of society , to overcome such negative phenomena such as poverty, unemployment, low wages, etc.

The political guarantee of human and civil rights and freedoms is democracy in its broadest sense – political pluralism and multiparty system, the orientation of various social forces on the values ​​of political discourse and harmony, formed on a democratic basis electoral system that would allow citizens to really influence public policy. take an active part in the management of public affairs.

As a spiritual guarantee of human compare and contrast essay cheap 123 help and civil rights and freedoms should be considered the dominance in the minds of people and society of the notion that man is in a civilized society the highest value, the primary bearer of legal needs and interests, the main subject of law, around interests, rights and freedoms which is formed by the modern legal system. An integral component of spiritual guarantees of human and civil rights and freedoms is respect for law as a necessary and important means of regulating social relations in a modern differentiated society, legality as the optimal mode of relations between man and the state.

Legal guarantees of human and civil rights and freedoms include legal procedures for their implementation, the right to know their rights and responsibilities, the right to legal aid, including free, to judicial protection, to appeal in court against decisions, actions or omissions of public authorities. authorities, local governments, officials and officials, to compensate at the expense of the state or local governments for material and moral damage caused by their illegal decisions, activities or omissions, the establishment of legal liability for violations or restrictions of human rights.

Legal guarantees of human and civil rights and freedoms are a system of such specific legal constructions as: presumption of innocence, impossibility of retroactive effect of the law establishing or strengthening legal responsibility for the offense, impossibility to be twice brought to justice for the same offense …

All modern states, depending on the state of their fundamental human rights, can be divided into three groups:

totalitarian states that openly neglect human rights (Burma, Iraq, Sudan, Zaire). declaring states recognize in principle all basic human rights, but have not yet established appropriate mechanisms for their implementation (Ukraine, Russia, some Eastern European countries, some Central and Latin American states that have freed themselves from dictatorships). states with well-developed legal institutions for the protection of citizens’ rights, although there are violations of the rights of certain minorities (Germany, France).

This situation requires the use of international human rights monitoring in different countries. Such tools include:

international legal acts, which contain the rules of activity, formulate the rights and obligations of the relevant subjects (conventions, covenants, agreements, treaties, etc.), as well as international documents, which usually do not contain rules of conduct, rights and obligations directly do not formulate (in particular, declarations, statements, memoranda);

international bodies for monitoring, control over the observance of fundamental human rights (commissions, committees) and for the protection of these rights (courts, tribunals).

Among all these means, a distinction should be made between “global” (ie, those created and used by the world community in the person of the United Nations, its competent bodies, or under its auspices) and “regional” (or, relatively speaking, continental).