In this article:

Ontological problems of the philosophy of law

The definition of the subject of jurisprudence adjoins this ontological problematic. Since the subject of science is the epistemological relationship between the subject and the object of cognition, which depends on how the object is preliminarily defined - the corresponding reality (in this case, legal), the definition of the subject of this particular scientific discipline includes questions of both ontology and epistemology.

At the same time, it is important to keep in mind that this is precisely a philosophical and legal problem, since it is impossible to determine the subject of jurisprudence (as well as any other scientific discipline) while remaining within the framework of legal science. To do this, it is necessary to reflect on it, and only the philosophy of law is able to do this, involving, of course, purely legal (including practical) knowledge.

Adjacent to the same problem is the question of structuring the legal sciences and defining their subjects, although here the connection with the problems of the science of legal theory is even more obvious; at the same time, it is impossible to resolve the issue of structuring the legal system without the involvement of philosophical knowledge.

Gnosseological problems of the philosophy of law

The epistemological problems of the philosophy of law include the definition of criteria for the scientific character of legal knowledge - the application of general criteria for scientific character to the field of legal knowledge. Another important component of the epistemology of law is the adaptation of general scientific methods in relation to the knowledge of legal phenomena.

This is due to the fact that jurisprudence, as V.P. Malakhov, not his own methodology, it is formed from the application of general and general scientific methods in relation to the study of law.

The considered problematics of the philosophy of law adjoins its ideological function associated with the formation of a "legal picture of the world", that is, the modern socio-cultural and historical situation of society by legal consciousness. It is philosophy as a worldview that determines, for example, the preference for the natural-law orientation of the legal theorist, rather than the positivist or sociological one.

This also includes philosophical reflection on the ideology, scientific stereotypes and personal idiosyncrasy of a scientist, which must inevitably be included today in the structure of scientific activity, if the latter claims to be scientific. These are the "non-scientific" factors that, according to the supporters of the sociology of knowledge, have a decisive influence on the process and result of scientific activity.

The noted problems - functions - of the philosophy of law, indicated above, are extremely complex, ambiguous, especially in the postmodern situation and require special research.

Definition of the subject matter of the philosophy of law

Based on the foregoing, the philosophy of law is understood as justification by epistemological and ontological philosophical methods (it defines the concept of law and its significance in society.

And also what exactly is the social order and the features of the assessment of law enforcement, the essence of the science of law, as well as the signs of its scientific validity and the methodology with which the knowledge of this industry is carried out), which is the "top" of jurisprudence, and contributes to the relationship of philosophy (reflection over the foundations culture) and other non-legal factors with jurisprudence.

MODERN PROBLEMS OF THE PHILOSOPHY OF LAW

Target:

Comprehension of modern philosophical and legal views;

Development of analysis and evaluation skills among masters related to modern philosophical and legal issues.

Report:

The main reasons and conditions for the multidimensionality of philosophical and legal views in the modern world and in Russia.

Abstracts:

Law and law in the system of modern communities of people.

Features of the development of philosophical and legal views in modern Russia.

Questions:

1. Criteria for the classification of modern philosophical and legal views.

2. General and special between the philosophical and legal views of modernity and the periods of formation and development of law in the Middle Ages.

3. General and special between the philosophical and legal views of our time and the periods of development of views on law in the New Age and the Enlightenment.

4. General and special between the philosophical and legal views of our time and the development of views on law in the USSR.

5. Specificity of values ​​in law and law in modern Russia in relation to Western Europe.

6. Hermeneutics in modern philosophical and legal views and in the theory of law.

7. Philosophy of law and its connection with the methodology of the theory of law.

Assignment for independent work.

When preparing for the seminar, prepare a written response plan for one of the recommended questions, indicating the literature used.

master's work and essay writing

The main types of masters' classroom work are: lectures and colloquia. Masters do not have the right to miss classes without good reason, otherwise they may not be admitted to the final standings.

In the process of preparing for the colloquium, masters can take advantage of the teacher's advice. Approximate subjects of reports, messages, questions for discussion are given in these recommendations. In addition to these topics, masters can, in agreement with the teacher, choose other, initiative topics.

The colloquium includes presentations by masters with pre-prepared reports on original philosophical and legal topics. The basis of the reports, as a rule, is the content of the abstracts prepared by the masters.

The teacher can evaluate the results of quality control of the master's educational work, put current grades in the working journal. The master has the right to get acquainted with the grades given to him.

Independent work of masters includes the study of lecture material, textbooks and teaching aids, primary sources, preparation of reports, messages, speeches in group classes, writing essays, fulfilling the tasks of the teacher.

The method of independent work is previously explained by the teacher and subsequently can be refined taking into account the individual characteristics of students.

Time and place of independent work /audiences of the Academy, libraries/ are chosen by masters at their own discretion, taking into account the recommendations of the teacher.

The study of the discipline ends with a test carried out throughout its content. The form of credit can be different: setting the final grade by accumulation, taking into account current grades; interview throughout the course; defense of an essay on original philosophical and legal issues - depending on the decision of the department, approved by the leadership of the university.

Masters who systematically worked on the discipline in the semester and showed positive knowledge on issues submitted to colloquiums are allowed to pass.

The abstract is a necessary element of learning, which begins with the choice of a topic. In order to choose the topic of the abstract, the master must listen to lectures and refer to educational and reference material (read the relevant chapters of textbooks, familiarize himself with the recommended teaching aids, etc.). Then you need to carefully read the proposed topics. It is better to choose a topic according to the problems that the master considers the most difficult, which will help to better assimilate and consolidate the material of the course. It is advisable to choose topics that maximize your professional development.

An abstract is an independent written work that analyzes and summarizes publications on a given topic, involving the development and justification of the author's own position on the issues under consideration. Abstract preparation is a type of research activity. Its writing is preceded by the study of a wide range of primary sources, monographs, articles; generalization of personal observations. Work on the abstract activates the development of independent, creative thinking, teaches how to apply philosophical knowledge in practice in the analysis of pressing social and legal problems.

The volume of the abstract is 20-25 pages of typewritten text /one and a half intervals/. The title page indicates: belonging to the academy, department; topic of the abstract; surname, name, patronymic of the author, year of writing. The second sheet contains an abstract plan, including an introduction, main questions, and a conclusion. At the end of the abstract, a list of the studied literature is given in alphabetical order with full and precise indication of the authors, titles of the publication, place and year of publication.

In the process of working on the abstract, the masters can use the advice of the teacher.

The deadline for completing the control essay determines, as well as the time of defense, the faculty and department.

1. The subject of the philosophy of law.

2. Philosophy of law in the system of philosophical and legal sciences.

3. The main functions of the philosophy of law.

4. The structure of philosophical and legal knowledge.

5. Specificity of philosophical problems of legal activity.

6. Philosophy of law and theory of state and law.

7. The concept and socio-humanitarian nature of legal science.

8. The concept of law. Law as a reflexive system.

9. Basic philosophical and sociological concepts of law.

10. Socio-psychological forms of reflection of law.

11. The unconscious and its manifestations in legal life.

12. The concepts of legal mentality and intuitive law.

13. Spiritual and mystical forms of reflection of law.

14. Animistic perception of legal phenomena.

15. The manifestation of the mythological worldview in law.

16. Religious understanding of law. Divine law.

17. Philosophical and legal doctrine, its role in legal research.

18. Historical types of philosophy and their manifestation in the theory of law.

19. Cosmocentrism as a kind of philosophical reflection of law.

20. Anthropocentrism, its manifestations in the field of law.

21. Rational-humanistic reflection of law.

22. Philosophical and ideological approach in the philosophy of law.

23. Positivist type of legal reflection, its evolution.

24. Hermeneutics and modern philosophical and legal thought.

25. The concept of the phenomenology of law.

26. Problems of ontology in legal sciences.

27. Epistemology of law, its significance for legal research.

28. Features of the knowledge of legal phenomena.

29. Criteria for the truth of scientific and legal research.

30. Axiological problems of legal sciences.

31. Concept, content, structure of the methodology of law.

32. General scientific approaches and methods of knowledge in legal research.

33. Methods of empirical research in legal sciences.

34. Methods of theoretical research in legal sciences.

35. Forms of scientific knowledge, their manifestation in legal research.

36. Integrative approach in legal research.

37. The concept of paradigm, paradigm in legal science.

38. Activity approach to the analysis of legal phenomena.

39. The role of law in the regulation of social relations.

40. Law and culture.

41. Law and civilization.

42. Law and morality.

43. Law and religion.

44. Law and politics.

45. Law and state.

46. ​​Legal consciousness, its structure.

47. The problem of human rights in philosophy and law.

48. Freedom and responsibility of the individual.

49. Legal culture of the individual.

50. Philosophical culture of a lawyer.

51. Moral and ideological traditions of Russian lawyers.

52. Law and counteracting the phenomena of corruption.

The relationship of philosophy and law. The essential nature of the interaction of philosophy and legal activity. The variety of forms of manifestation of philosophical and legal ideas: conceptual systems put forward by representatives of philosophical thought; formulation and discussion of philosophical problems in various systems of legal understanding; reflection of worldview ideas in basic legal documents, public discussions, personal convictions of professional lawyers.

The growing importance of the philosophy of law as a factor in the evolution of modern civilization. Global and national reasons for increasing the role of worldview self-knowledge of legal theory and practice. The need to improve the methodological culture of lawyers, their moral and business qualities, the development of skills in posing and resolving philosophical problems of legal activity.

Historical fate of the development of the philosophy of law in Russia, its current state. Social, philosophical, practical-legal, theoretical-legal, pedagogical reasons for the revival of the philosophy of law in Russia as an independent branch of scientific knowledge and academic discipline.

Diversity and inconsistency of approaches to understanding the purpose and content of the philosophy of law. Modern discussions on the problems of the structure, functions of the philosophy of law, correlation with political-legal and historical-legal disciplines.

Characteristic n subject of the philosophy of law. The subject of the philosophy of law as an integrative characteristic of its object area, cognitive goals, the content of concepts, the specifics of the methods of cognitive and practical activities.

Legal activity as an object area of ​​the philosophy of law. Concepts of legal culture, legal outlook, legal consciousness, legal science, legal practice. Legal practice as an activity for the creation, implementation, application of legal norms in the life of society, their improvement, improvement of the legal culture of subjects of public relations, training of professional lawyers.

The purpose of the philosophy of law is the formation of the ideological basis of legal activity from the standpoint of a philosophical understanding of the ultimate foundations of being.

The main functions of the philosophy of law in relation to legal activity: ontological, epistemological, axiological, methodological.

The problem of the structure of philosophical and legal knowledge. A combination of subject and problem approaches to the definition of the structure of the philosophy of law. Concepts of ontology of law, axiology of law, epistemology of law, methodology of law. The manifestation of the structural nature of legal knowledge (state law, criminal law, etc.) in the structure of philosophical and legal issues.

Philosophical and legal doctrine as a form of existence of the philosophy of law in certain historical conditions; a conceptually formalized system of ideas that reflect the nature of law, the laws of its functioning and development from the standpoint of a certain philosophical worldview.

The structure of the philosophical and legal doctrine. General philosophical orientation, historical type of philosophizing. The concept of "substantial type of legal understanding" as a representation of the fundamental principle, the substance of law (absolute, nature, society, man, mind). Reflection of the specifics of national-historical development in the content of the philosophical and legal doctrine.

The problem of the essence of law. I. Kant on the difficulty of determining the essence of law. A variety of approaches to understanding the essence of law.

Description of the totality of social qualities of law (according to J. G. Berman). Legal institutions and institutions. Availability of professional lawyers. System of legal education. The presence of the science of law. Consistency. Ability to develop. The presence of patterns of evolution. Possibility of influencing power. Coexistence of elements of different legal systems. The presence of legal ideals.

Encyclopedic approach (YUES, M., 1999.) Law as a system of norms based on public authority. Law as an imperative standing above the state and the law. Law as a set of existing social regulators.

theological approach. Law as a set of normative principles sanctified by divine power.

Philosophical and sociological approaches. Law as strength, will, power. Law as justice. Law as interest. Law as a common good. The right is at least good. Law as an attribute of the state. Law as a measure of individual freedom in society

integrative approaches. Libertarian legal (Nersesyants V.S.). Combination of normativism, jusnaturalism, sociologism, philosophy. Law as a system of communication (Polyakov A.V.) and others. Reflexive approach. Law as a reflexive, normative-imperious form of human social existence.

Integrative-activity approach to understanding the essence of law. Its ideological fundamentality, philosophical and sociological significance. Relationship with the needs of mutual development of the philosophy of law and the general theory of state and law. Law as a reflexive activity on the normative-imperious regulation of social relations.

Topic 2. The reflexive nature of law. Law as an object of scientific knowledge

The reflexive nature of law. Reflexivity as an essential property of law. The concept of a reflexive system. Reflexivity, the ability to self-knowledge is an essential property of social life. Law as a form of social reflection. Regularities of the functioning of the reflection of law. Law reflection functions: descriptive, explanatory, prognostic, evaluative, regulatory.

Patterns of the evolution of the reflection of law. Orientation to the dominant type of worldview in society. Displaying the socio-cultural development of society. Substantial type of legal understanding. Relationship with the type of scientific reflection.

The main logical-historical types of reflection of law:

Empirical-historical reflection of law.

Rational-scientific type of reflection of law.

Intuitive-psychological type of reflection of law.

Spiritual-mystical (sacred) type of reflection of law.

Socio-personal type of reflection of law.

Socio-institutional type of reflection.

Cultural-civilizational type of reflection of law.

Philosophical type of reflection of law.

Integrative (integrative-activity) approach to the reflection of law.

Rational-scientific type of reflection of law. Practicality and rationality as a vital way of understanding social and legal reality.

The emergence of rationality within and in the interests of the practical activities of people. Rational-practical approach to the regulation of social relations. The emergence of scientific elements on the basis of experimental-rationalistic knowledge of legal phenomena. Manifestations of reflexivity in the structure and content of legal (legal) sciences.

The main features of science and their manifestation in legal knowledge. Science as a system of rationally substantiated and practically confirmed knowledge; institute of social activity for their improvement; direction of culture, realizing the cognitive needs of mankind.

The possibility of relatively independent spiritual production, abstracted from immediate practical needs, the construction of abstract theoretical objects that go beyond experimental data. The ability to formulate patterns of origin, functioning, evolution of the objects under study. The presence of special sign systems, a special language with its own conceptual system. Availability and improvement of a special system of methods of empirical and theoretical research. The presence of a complex system of typology of scientific knowledge, schools and trends. Availability of special institutions organizing scientific activities and providing legal, political, economic, personnel, information support for science. High level of self-knowledge, reflection of scientific activity based on the philosophy of science.

Patterns of the development of science and their manifestation in the field of jurisprudence. Dependence on social needs and conditions. Accelerating the pace of development of scientific knowledge. complication of the structure of scientific knowledge. Combination of integration and differentiation of scientific knowledge. Interaction with various areas of culture. Deepening the reflection of scientific knowledge. Types of scientific rationality and their manifestation in legal science.

Features of social cognition, manifested in legal science. Rational form of self-consciousness of man and humanity. Connection with problems of social management. Historical approach. Individual approach. Polydisciplinarity. Probabilistic methods. The specificity of the impact of the subjective factor. The impact of social interests: politics, economics, etc.

Legal sciences as a section of humanitarian knowledge, a system of scientific knowledge that reflects the content and patterns of activities for the normative-authoritative regulation of social relations and develops recommendations for their improvement. Systematic legal sciences.

Specific features of legal science. Serving self-knowledge of legal practice. The reflexive nature of the rules of law, systems of law, the legal system of society. Display of social reality. The relationship of social ideals. Legal science and public duty. The dialectic of personal freedom, interest and the common good.

Philosophical understanding of the theory of law as a set of views, ideas, theories that reflect and guide legal practice. Relationships between the subjects of the history of state and law, comparative law, theory of state and law, sociology of law, ethics of law, individual branches of law, philosophy of law.

Disciplinary and interdisciplinary reflection of legal science. The concept of the paradigm of legal science. The specificity of paradigms of legal activity. The structure of the legal paradigm. Intra-paradigm, inter-paradigm, supra-paradigm reflection. The concepts of historical, methodological, philosophical reflection of legal science.

Legal reality as an object of scientific knowledge.

Sociocultural nature of law. Multilevel nature of legal phenomena and processes of their cognition. Concepts of the phenomenon and essence of law.

Diversity and unity of legal reality. The concepts of "legal life", "legal reality", "legal reality". Legal reality as actually given (present) legal reality. The relationship of material and ideal, subjective and objective elements of legal reality.

The concept of a legal relationship as arising on the basis of the norms of law of public communication, the participants of which have subjective rights and legal obligations. State-imperious, volitional nature of legal relations. The relationship of legal and actual relations in society. Legal relations as forms of actual relations and a measure of legal freedom of subjects of public relations. The problem of classification of legal relations.

The concept of the rule of law. Rule of law in the system of social norms. Norm as a model, fixing typical forms of social relations. Criteria for the classification of legal norms based on the characteristics of the mechanism of legal regulation.

Knowledge of law and legal consciousness. Legal consciousness as a set of knowledge, emotional representations, volitional assessments of legal reality. Correlation of sensual and rational, everyday and theoretical knowledge about law. System of professional legal knowledge. Classification of types of legal consciousness on the subjective basis: individual, group, mass, public legal consciousness.

The social organization of law as a stable set of social bodies, institutions (organizations), acting as a social form of its functioning. Unity and separation of powers. Essence, purpose, functions of the authorities. Legislature. Executive power. Judicial branch. The concept of the rule of law.

The systemic nature of legal reality. The concepts of "system of law", "system of legislation", "legal system of society". Unity and difference of system representations of legal reality.

The relationship of scientific and philosophical knowledge of law. The similarity of scientific and philosophical knowledge: abstractness, rationality, logic, reasoning, conclusiveness, the ability to delve into the essence of cognizable phenomena.

Difference and complementarity of epistemological characteristics of science and philosophy. Comparison of objects of scientific and philosophical knowledge. Conceptual apparatus of science and philosophy. Methods of scientific and philosophical knowledge. Science as the realization of value attitudes and goals of cognition. Philosophy as a generator of value orientations of law and its knowledge.

Philosophy as an ideological reflection of scientific and legal knowledge. Directions of philosophical reflection of legal science: ontology, epistemology, axiology, methodology. Historical types of interaction between philosophy and science, their manifestations in the field of law.

1. What is the essence of law?

Sources:

· Philosophical Dictionary / Ed. I.T. Frolova. - 5th ed. - M.: F56 Politizdat, 1987. S.375-376

Despite the fact that law has existed for millennia, domestic and foreign literature has not yet developed a unified approach to determining its essence, an unambiguous idea of ​​it. The question of the concept of law is very complex and controversial. The essence of law is usually given depending on the type of legal understanding. The pluralism of existing approaches to the definition of law is a reflection of the complexity of law as an independent phenomenon.

The following concept of law is quite widespread both in scientific and educational literature:

Right is a system of officially established and protected norms that act as a regulator of human behavior.

Law, taken in the unity of formal and substantive features, has a number of specific properties.

1. Normativity. Law streamlines, harmonizes social relations with the help of regulatory means - the rules of law. legal regulation operates on the territory of a certain state continuously, up to its change or cancellation. The main purpose of the rules of law is to provide a general directional impact on the subjects of legal regulation, focused on lawful behavior. The normativity of law is the official connection between law and the state, therefore the activity of authorized state bodies (law-making) remains the leading way of regulating general patterns of behavior.

2. Formal certainty. Associated with formal expression, which suggests that the rules of law must necessarily be expressed outwardly, i.e. be fixed in a legal source.

3. security. Since law is the state regulator of social relations, the state must also take care of maintaining the effectiveness of law.

4. Consistency. Law has its own internal structure, a certain order of organization and arrangement of its constituent parts, due to the nature of the relations existing in society.

2. Indicate the content of the traditional (“prohibitive”) and liberal approaches to the interpretation of law.

The social institution of law belongs to the regulatory sphere of social life, because its main purpose is the regulation and control of the behavior of individuals, the conclusion of this behavior in a certain framework, forms acceptable to society as a whole.

With all the obviousness of the functions and role of law in society, its essence, nature and content continue to be the subject of debate. Currently, there are mainly two approaches to understanding the essence of law: traditional, or “prohibitive”, and liberal, based on the idea of ​​“natural”, inalienable rights and freedoms of the individual.

Traditional approach actually identifies law with law. Law is a system of obligatory norms (rules) of people's behavior, established and supported by the state. In principle, this is a “normal”, so to speak, everyday interpretation of law, when it is perceived as a kind of set of prohibitions and punitive sanctions for their violation. The essence of such an understanding of law can be expressed by the principle: “everything that is not allowed is prohibited”.

A completely different approach to understanding the essence of law is expressed by the concept, conventionally called by us liberal which arose in the second half of the eighteenth century. within the framework of educational philosophy and is associated with the names of J. Locke, Ch. Montesquieu, J.-J. Rousseau, I. Kant, C. Beccaria and others. It proceeds from the conviction that in law it is not prohibitions and repressions, not restrictions on human behavior that are primary, but, on the contrary, their rights and freedoms. The term “law” was, as it were, returned to its true content, reflecting the social nature of law: it is, first of all, precisely the right of a person to life, property, security, freedom of conscience, speech, movement, etc. In other words, the basis of law, its origin , the primary element is recognized as the natural rights and freedoms of a person, which must be observed categorically, regardless of any, even the most expedient, requirements of the moment. No state prohibition and in general no requirement for an individual should encroach on his inalienable rights and freedoms.

The theoretical basis of the philosophy of law, the ideas of freedom and justice were the ideas of the rightness of man as the highest social value of society and the state, expressed in the XYII-XYIII centuries by the philosophers-enlighteners J. Locke (1632-1704), C. L. Montesquieu (1689-1755) , J.J. Rousseau (1712-1778), M.A. Voltaire (1694-1778). They believed that a person has natural, inalienable rights (the right to life, the right to freedom, etc.), which belong to him from birth, which cannot be taken away by either the state or society. These philosophical and legal provisions are legally enshrined in the legal acts of that time - the English Magna Carta of 1215, the Petition on the Right of 1628, the Habeas Corpus Act of 1679 (England) (The act on the better provision of the subject and on the prevention of imprisonment for seas), and other legal documents. It is impossible to deny their important role in the development of modern jurisprudence and philosophy of law.

It is not easy for a modern person to understand that the philosophical ideas about human rights and freedoms in the past were perceived as social utopias, the ideas of the great philosophers and thinkers of the past, who were far ahead of their time and had a huge impact on all subsequent political events, were very difficult to take root in the minds of people and society. generally. From the bourgeois revolutions in France, England, America, when the first attempts were made to translate these ideas into reality, it was then that the basic human rights and freedoms that are still used today were enshrined at the legislative level. So, in France, on August 26, 1789, the Declaration of the Rights and Freedoms of Man and Citizen and Citizen was proclaimed, and in America, on September 26 of the same year, the Bill of Rights (amendment to the US Constitution). However, in fact, until the gigantic social upheavals of the 20th century - the First World War, the October Revolution of 1917, the Second World War - even in states with long-standing republican and democratic traditions, not only the equality of all people, but also the possibility of protecting a person, was not actually recognized. who is recognized for his individuality and full respect for his rights and freedoms, regardless of his views, level of culture, education, place in society, wealth, race, nationality and skin color. Suffice it to recall the attitude towards Jews and other nationalities in Nazi Germany and Russia.

The clearest understanding of the legal status of man and citizen was formulated in the American Declaration of 1776, which states that: "... all people are created equal, and they are all endowed by their creator with equal inalienable rights, which include life, liberty and desire Luckily". However, the recognition by society of the legal status of a person and a citizen assumed not only a kind of social contract that called on people to respect the individual, but also the creation of a legal system that protects a person from the arbitrariness of the authorities. The history of mankind has shown that human rights and freedoms cannot be limited by narrow national boundaries, since all major world events, regardless of territorial, ideological or other barriers, leave their mark on it. Therefore, it is quite natural that the world community has come to understand and realize the legal status of a person and a citizen as the most important fundamental problem of the subject of the philosophy of law.

This attitude to the ideas of human rights and freedoms has largely become possible thanks to the United Nations established in 1945 and its activities. Its main task is to maintain peace, security, respect for the legal status of a person and citizen and disseminate ideas about these rights. So, on December 10, 1948, the UN General Assembly adopted the Universal Declaration of Human Rights. It is difficult to overestimate the importance of this international legal act. For the first time in international practice, the Declaration reflected the idea of ​​the inseparable connection and interdependence of the entire complex of fundamental human rights and freedoms. This provision was further developed in the resolution of the UN General Assembly on December 4, 1986: "All human rights and fundamental freedoms are indivisible and interdependent; and the development and protection of one category of rights cannot serve as a pretext or justification for the liberation of states from the development and protection of other rights."

An important historical milestone in the development of human rights and freedoms, in strengthening and developing international processes in the military-political, trade-economic, environmental, humanitarian, legal fields, was the Final Document of the Vienna Meeting of Representatives of the States Parties to the Conference on Security and Cooperation in Europe ( 1989) (10, pp. 45-51). During the Vienna meeting, for the first time, the philosophical term "human dimension" officially entered the legal lexicon. This meant the turn of the Helsinki process towards the person, his interests and concerns, this made the person the starting point of all accepted legal agreements. In the philosophical and legal sense, the "human dimension" refers to the whole range of human rights: civil, political, economic, socio-cultural, etc., as well as contacts between people, cooperation in the field of information, culture, education.

It should be noted that the philosophical and legal concept of human rights contains two main points. The first is that the inalienable and inalienable rights of the “first generation” (the right to life, the right to private property, the inviolability of the home, privacy) are inherent in a person simply because he is a person. These are natural (personal) rights that flow from the very human nature of each individual, and their purpose is to maintain a person's self-esteem. The “second generation” of human rights includes rights established in accordance with the rule-making processes taking place both at the national and international levels (civil, political, electoral, socio-cultural and other rights). The philosophical and legal basis of the rights of the second generation is the consent of those to whom they apply, that is, the consent of the subjects of law, while the basis of the first generation of rights is the natural order of things.

In general philosophical terms, human rights can be defined as rights inherent in human nature, without which he cannot exist as a biosocial being in a society of similar individuals. Thus, human rights and freedoms provide an opportunity for the full development and use of human qualities, intellect, talents and abilities, opportunities to satisfy spiritual and other needs. They are based on the growing need of humanity for a life in which the inherent dignity and worth of every human person is respected and protected by the state.

Human rights and the rule of law

The concept of the rule of law was formed in Western philosophy in the late XIX - early XX century. The formation of the ideas of the rule of law was one of the greatest achievements of philosophical and legal thought, inextricably linked with the "first generation" of human rights - personal, civil. This is primarily the right to life, the right to freedom and the right to private property. An important property of the rule of law is its dynamism, the ability to mobile and effectively respond to social changes that arise in society by legal methods. It is quite natural that new processes in the sphere of economic, political, moral relations require the search for new effective ways of relations between the state and the individual. However, the question of the relationship between the state and the individual in a free market economy was initially at the center of confrontation between representatives of various currents of philosophical and legal thought, since it affected the most important principles of society - freedom, equality and justice. At the same time, two philosophical approaches to this problem have historically been formed in jurisprudence. According to the first, the theory of individual freedom of a person, inseparable from the duty of the state to guarantee this freedom from anyone, including his own, interference in this area. In other words, the main thing is economic freedom, and political rights are only a means of achieving individual freedom of the individual. Proponents of this approach (BUT. Smith, J. FROM. Mill, B. Constant, D. Locke and etc.) believed that freedom ultimately breeds inequality, and thus freedom and equality can contradict each other! They considered freedom itself to be the highest value, ensuring the development of individuality and diversity of the personality, eliminating the “similarity” to likeness.

The founder of another philosophical and legal concept is the early bourgeois philosopher-thinker Rousseau, who believed that everything should be subject to the principle of equality, including the government, whose task is to ensure equality. This approach reveals a positive understanding of freedom as the right of a citizen to perform certain actions permitted by law.

These two directions were developed in Russian pre-revolutionary philosophical and legal thought. So, B. Chicherin defends the priority of freedom and its independence from any state interference in the political and economic spheres of society. Formally, such freedom is incompatible with equality. And although B. Chicherin opposed the extremes of individualism, in his opinion, social inequality is a natural result "movements industrial forces". Therefore, he is against state intervention in changing such a situation, because "such is the general law of human life, the law, the operation of which can only cease with the absolutely unthinkable general destruction of freedom." If the state, instead of establishing equal freedom for all, decided "rob rich in benefit the poor”, then this would be not only a violation of justice, but also a distortion of the laws of human existence.

Thinking philosophically, it should be noted that the liberation of individuals from the strict tutelage of the state contributed to the development of creative initiative and self-activity of people, private entrepreneurship, the development and improvement of productive forces, the creation of new technologies and, ultimately, the growth of national wealth, the strengthening of the economic power of the bourgeois state. These parameters contributed to the achievement of the high value of classical liberalism. However, already at the end of the 19th century. there were also negative consequences resulting from the implementation of the ideas of liberalism and individualism, which required the adjustment of some of its principles, in particular the principle of freedom, “freedom from” any interference, influence, etc. During this period, class contradictions in society began to manifest themselves more and more clearly, a sharp polarization between wealth and poverty, which could lead to social explosion and upheaval. The principle of the so-called "equal starting opportunities", carried out with the complete non-interference of the state, inevitably gave rise to the stratification of society, since far from everyone, even talented and gifted people, have the ability to fight hard and compete, accept the "conditions of the game" of the market element, fit into the situations offered by the principle of freedom.

Individualism, which occupied such a prominent place in the philosophical and legal doctrines of classical liberalism, gradually began to reveal "selfishness and narcissism" (F. Hayek). This largely contradicted the original philosophical meaning given to this concept by liberal doctrines. In the philosophical and legal interpretation of representatives of liberal currents, individualism was associated primarily with a high assessment of the identity of the individual. "Basic traits individualism came respect to personalities how such, t. e. confession absolute priority views and addictions everyone human in his own sphere activities, how would narrow she is nor was, a also belief in desirability development individual talents and inclinations". According to the philosopher F. Hayek, a consistent supporter of liberal market concepts, just such individualism, which grew out of elements of Christianity and ancient philosophy, first fully developed in the Renaissance, grew into Western European civilization.

Human rights and legal culture

legal philosophy man freedom

One of the indicators of legal culture is the legal upbringing of a person, “... the desire in any business to establish the legal principles as the highest values ​​of civilization. Unfortunately, in our state the population has been brought up on a dogmatic, dismissive and superficial attitude towards human rights. The lack of legal culture is felt everywhere. In the formation of the legal culture of our society, it is necessary to use the experience accumulated by mankind in the relationship between the individual and the state. Our recognition of the priority of universal human values, the democratization and humanization of social processes have put on the agenda the question of new approaches in the work on the formation of the legal culture of citizens. It is obvious that the previous approaches related to the education of law-abiding members of society are clearly insufficient for the creation of a democratic constitutional state.

The consolidation of human rights and freedoms as one of the foundations of the modern state system presupposes diversity and free choice of views, life and activities of the individual, limited by only one condition: the prohibition of actions that destroy the personal rights of other people. Respect and protection of human rights is the foundation on which the democracy of state power, the political structure of human freedom, is built. Human freedom, protected by the state, gives rise to the will and ability for economic and social progress, which, in turn, ensures true peace and the flourishing of all mankind.

Human rights and freedoms go back to the category of the most important universal values. The concept of value (precisely the concept, and not just a randomly used, fashionable word) was introduced into the special philosophical lexicon only in the 60s of the 19th century, when it was completely assigned to it. Values ​​are understood as "specifically social definitions of objects of the surrounding world, revealing their positive or negative value for a person or for society (good, good and evil, beautiful and ugly, contained in the phenomena of social life and nature)". The concept of "value" is one of the main concepts in philosophy and sociology. Subsequently, a theory of values ​​arises, and in it a number of different schools: the concept of naturalistic psychologism (J. Dewey, C.Lewis, A. Meinong, R. Perry), the concept of axiological transcendentalism (V. Windelband, G. Rickert), socio-practical concept of Marxism, cultural-historical relativism (W. Dilthey, A. Toynbee, O. Spengler, P. Sorokin), structural-functional theory (F. Znanetsky, T. Parsons) and others. In the first decade of the 20th century, this area of ​​research became an independent theoretical discipline, which was called "axiology" (from the Greek "axio" - value, "logos" - teaching). This term was introduced by the French philosopher Paul Lapi and later applied by a German scientist E. Hartman. This branch of science is aimed at reflecting the value aspects of reality.

The formation of modern thinking in the political and legal life of society is directly related to the problem of human rights in their practical implementation. Of particular importance here is the recognition of the priority of universal human values, a departure from confrontation, taking into account the experience of other states in the implementation of human rights, a clear position on the issue of the original, dominant nature of human rights, which finds its logical development in the principle of mutual responsibility of the state and the individual. Throughout its history, mankind has created entire sets of laws to guide the social behavior of people, to punish criminal acts and encourage actions that comply with legal norms. Human rights provide everyone with the maximum freedom of individuality, protect his life and dignity from any encroachment from outside. According to the famous thinker, Protestant theologian Alberta Schweitzer (1875-1965), it would be unreasonable to try to deny the connection that exists between law and worldview. Worldview is the germ of all ideas and beliefs that determine the course of action of the individual and society. It seems important that human rights, unlike morality, do not assess the interests of the individual, but protect, defend and delimit these interests. Human rights are a single set of rights and obligations. And in its essence, human rights are the embodiment in a specific form of high ideas of justice, human freedom and equality, which, in turn, implies democracy, mercy, humanity. Each subsequent social system opens up new opportunities for the development of the individual, which increasingly becomes the bearer of the idea of ​​equality of rights and freedoms. "Nothing human in more despondency lead not maybe, how deprivation connected human right"

The concepts of the meaning of life, values ​​and ideals were largely based on these principles. The latter are not reduced to the needs and interests that determine the behavior of a person as an individual - ideals are closely related to the moral criteria that a person voluntarily imposes on himself. The state of democracy, the spiritual atmosphere of society, the level of culture have a huge impact on the scope and nature of rights and freedoms. An analysis of all these factors helps to answer the question of why, in the conditions of one socio-economic formation, different amounts of rights and freedoms are fixed in the states of different regions of the world. Human rights are interconnected with all other aspects of the moral and spiritual life of the people. The concept of "rights" contained in the Declaration implies human rights. We are talking about a sense of human dignity, equally inherent in all people, whoever they may be. Human dignity means the recognition of the value of the individual in society and the need to protect him from adverse actions on the part of other individuals or groups of the public, including the government. . "My freedom, how right, a not strength only, directly depends from recognition equal rights all others. Right there is freedom, conditioned equality... synthesis freedom and equality" Thus, the person in the rule of law is sacred, the person in it is always considered as an end and never as a mere means. All the postulates of a democratic society are built on such a foundation. The true activity of the state should be directed to the benefit of society and its individuals. In addition to freedom, self-realization of the individual requires another factor closely related to freedom, the variety of life situations. It has been noted that even the most free and independent person, finding himself in conditions of a monotonous life, does not achieve proper development. At the same time, one should not forget that diversity is a consequence of freedom. The state cannot wish a person any other state than one in which each individual, enjoying the fullness of freedom, can develop all his inclinations and abilities. Then physical nature also takes on in human hands that form, that image that each person arbitrarily gives it to the extent of his needs and inclinations, being limited only by the limits of his power and his right. Any desire of the state to interfere in the private affairs of citizens, if they do not infringe on the rights of others, is unacceptable and unacceptable. With freedom, people are more easily united in societies that help the state in many ways in the performance of its functions. It is in the interests of the state to allow as many parties in society as there are various private interests in it: after all, if the rule of law is an instrument of only one of these parties, then from where will it get the strength to subjugate all the others.

True freedom, true equality are feasible only in a democratic state governed by the rule of law, the hallmark of which is the rule of law. The implementation of laws testifies, first of all, to what extent the general civil rights established in the interests of everyone are realized. The scope of such rights in different states, of course, is not the same, and depends on the level of political culture of the state. However, whatever these rights may be, they are established as a common good. The entire history of human rights can be seen as a path towards the gradual recognition by all peoples of the dignity and worth of the human person. Each individual person is a product of socialization, an essentially single subject of activity and a bearer of certain cultural values. Considering a person in the structure of philosophical categories "general-special-singular", you can imagine it as humanity as a whole and universal in each specific representative of our kind; or as a certain community of people (racial, national, class, confessional, professional, characterological, etc.) and manifestations of this community in specific people; or as an individual in the concrete uniqueness of his real existence. This three-level structure, according to researchers, is one of the most important universals of being and human consciousness. Each of these levels exists as an objective reality. The genetic, ecological, cultural commonality of mankind is reflected to varying degrees by different historical eras; it is perceived differently by different representatives of the same epochs.