Semitko Alexey
http://doi.org/10.17506/ryipl.2016.17.1.83105
Abstract: The article is devoted to the attitude towards the concept of priority of rights and freedoms of a person as major legal principle of liberalism in Russian and foreign legal sources. The approach, which rejects availability of this concept within the liberal theory and denies the supreme value or priority of rights and freedoms of a person in general, i. e., in theory and practice, is critically analyzed. The understanding of international standards of democracy and liberalism in Russian and foreign sources is discussed. It is indicated that the idea of priority of human rights lies in the basis of liberalism, and it is connected both with advantage and personal freedom, as well as with other ideas, for example, the ideas of natural rights, constitutional state, and supremacy of law. It is emphasized that the priority of human rights has nothing in common with the absolutization and hypertrophy of these rights. The later contradicts not the interests of society, but the powers of state apparatus. If to deny or – what is even simpler – not to protect the priority of human rights, then there is nothing else to do then to approve the priority of the government and its representatives – government employees. Any type of government including democratic one shall be limited to human rights, which in that case are higher, more important, and prior. The state is a mean of protection of human rights, which being the purpose (I. Kant), are the main, leading, prior beginning in this pare of categories. The mean though being extremely necessary for the achievement of the goal and at the same time something secondary and subordinate, sometimes possesses – as in case with the state – significant power, from which it is necessary to protect certain individual as it is seen by liberalism. Liberalism speaks about primacy of the individual over the state, but not over the society. This idea is often confused in the Russian sources where the formula of the priority of human rights over the state is criticized, and the opposition of individual to society but not the state is attributed to it. The government, even democratic, does not carry out the mission of human rights protection “automatically”; civil society shall be mature enough “to stimulate” these activities of the state. Considering the Western attitude towards the idea of the rights and freedoms of the person and their priority, it is explained why today this idea is not so much spoken in comparison with the Russian political and legal sources.
Keywords: priority of human rights; rights and freedoms of person; liberalism; democracy; state; personality and state; constitutional state; constitutionalism.