Theoretical aspects ot the contitunional and legal restrictions of human rights
Journal Title: Правова держава. Щорічник наукових праць (Pravova derzhava) - Year 2018, Vol 29, Issue
Abstract
The theoretical and legal problems of the category “constitutional and legal restrictions of rights and freedoms of man and citizen” are considered. The purpose of the article was to further improve the theoretical and constitutional and le- gal principles, which, are recognized by the majority of scholars, is named the legal category. The scientific expediency of the study of the problems stated in the article is substantiated. The role of restrictions is emphasized as a basis for solving the problems of the proper imple- mentation of the constitutional and legal status of a person in Ukraine. The principle enshrined in the Constitution of Ukraine emphasizes that the constitutional rights and freedoms of a person and a citizen can not be restricted except in cases stipulated by its norms. It refers to other constitutional provisions aimed primarily at guaranteeing the en- shrined rights and freedoms, in defense of their restrictions without proper grounds, and which generally determine the concept of restrictions established by the state of rights and freedoms. International legal possibilities of application of restrictions of human rights and freedoms on which the rules of national legislation of separate states should be based are given. Specifies the need for a qualitatively new level of constitutional-legal regulation of the state’s activities, including, as an expression, a legitimate interference with the private auton- omy of the individual in order to secure the common good. A comparative analysis of individual scientific approaches to understanding the concept of the category under study is carried out. The idea is based on the lack of a single scientific interpretation of such concepts as “restriction of rights” and “constitutional and legal restric- tions of rights and freedoms”. There are a few basic directions concerning disclosure of the essence of the named catego- ry. This is, in particular, the understanding of the relevant restrictions of human rights: 1) nar- rowing, reducing (diminishing) the amount of guaranteed constitutional rights and freedoms of man and citizen; 2) as a temporary general or specific-individual suspension or reduction of the scope of the rights and freedoms determined and guaranteed by the Constitution of Ukraine; 3) the lawful, purposeful quantitative and (or) qualitative undermining in the process of the right to implement those possible patterns of behavior (empowerment) that constitute the fundamental right (freedom) of a person, on the part of others, etc. It is emphasized the expediency of distinguishing such concepts as “limitation” and “lim- itation”. Critical understanding of the above approaches gave the authors the reason to reach a conclusion on the expediency of deepening the meaningful concept of the category of constitu- tional and legal constraints. On the basis of the analysis carried out in the special literature, the legal features of legal restrictions, which the authors recognized as the starting point for the essential characteristic of the category “constitutional and legal restrictions of human and civil rights and freedoms”, offered its own definition.
Authors and Affiliations
Tatiana Kostetska, O. Andriyevska
Keywords
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