Constitutional stipulation of freedom of a person - Государство и право реферат

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Constitutional stipulation of freedom of a person

Citizenship is as the condition of possession the rights in the antique policy. The Roman jurisprudence about the place and role of the person in the society. Guarantees of the rights and duties of the citizens in the constitutions of states of the world.


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Constitutional stipulation of freedom of a person
The antique classical legal theory and practice based on ethathist beginnings, has laid the foundation of modern doctrines about the organization of the state power, powers of bodies of the government and their officials, has given the mankind sets of samples of legal regulation of public relations. At the same time in the sphere of legal stipulation of the status of the person, especially in the relations with the state, there has been made very little. Political and legal thought and practice of the policy organization of the society have not yet known the concept of the rights of the person as the publicly-legal category. The condition of possession the rights in the antique policy was citizenship. The basic value of the policy - there was recognized not individual freedom of a person but collective freedom, that is the freedom of a person as the citizen of the policy, being the basis of the reasonable law and order in the society.
For the free citizens of policies there were recognized certain measures of possible behaviour, however on their contents, ways of stipulation and protection they essentially differed from habitual to us rights and freedoms of a person and a citizen. It is necessary to note, that in the antique states the person did not enjoy freedom in its modern understanding. Alin did not have representation about it and did not assume, that in relation to the state it was possible to enjoy any rights. The citizens of policies identified themselves with the state, its purposes and aspirations. Nevertheless, according to A. V. Ilyin, exactly in antique policies " the legal system of the West based takes its beginning based on the private property and active role of an individual, the citizen-proprietor, whose personal advantage, rights and freedoms are protected by the right from all penetrating and breaking state dictatorship, violence and robbery " [53].
The Roman jurisprudence has issued the previous representations about the place and role of the person in the society and in the form of full legal capability. In this full legal capability of the Roman citizen there existed the political component - jus suffragii and jus honorum [54]. However filling of the political status of the Roman citizen was considered, most likely, as admitted and has not received stipulation in the form of more or less concrete list of measures of behaviour.
Positive and legal stipulation of various displays of freedom of the person is indissolubly connected with ideas of medieval youth naturalism, which was under influence of Christian dogmatics. In the Middle Ages the rights were understood as the privileges granted by the seigneur to the vassals. Feudalism, on the one hand, and church with its religious intolerance, on the other hand, have done to block all to way to aspirations of the person to political freedom, freedom of worship. The question about the real rights of wide layers of the society did not exist. The codes of that time of the rights to political and civil freedom, freedom of worship were not universal and were recognized only for one layer of the society - the nobility [55].
Feudal charters have become historically first, internally inconsistent and not always consecutively stipulated rights and freedom of a person. The vivid example of such documents can serve the Gold Bulla of King Andrew II (1222), Gold Bulla of Emperor Charles IV (1356), Koshit privilege of king Lui Hungarian (1374), Petrakov statute (1496), etc. However the most well-known of such codes is the Great charter of liberties (1215). Its adoption was the political result of the struggle developed in England between the monarch and antiroyal coalition, headed by barons and the supreme clergy, dissatisfied with unreasonable taxes of royal authorities. There for the first time was legislatively stipulated the principle of civil freedom. It was proclaimed in Article 39 of the Great Charter: " Any free person will not be arrested, or imprisoned, or deprived of possessions, or declared outside the law, or expelled, or made destitute, and we shall apply to him only lawful verdict under the law of the country." [56]. The charter also has stipulated freedom of church (Article 1, 63), freedom of movement (Article 42); creation of the organization which should provide inviolability of the rights of the people (Article 61). Thus, at the beginning of XIII century for the English citizens there was recognized the right of personal freedom, and it was not only recognized, but provided.
The great Russian lawyer A. D. Gradovskiy has noted: " In the Great Charter there has found expression the known minimum of the political requirements developed by the English nation. All the others have grown from it, as from the initial crystal. But it was not simple mechanical process, on the contrary, the essence of English freedom and English establishment changed under the influence of the latest conditions of the national life " [57].
In the subsequent in practice of protection of the right of personal freedom great distribution has got the order of Habeas Corpus. It is not known when and under what circumstances there happened the occurrence of the given order. However in the first half of the XV centuries it was often applied. Originally it was applied as the means of restoration of freedom violated by private persons, but a since the times of Henry VII (1485-1509) it began to be applied in events of imprisonment of representatives of authorities [58]. Later the order of Habeas Corpus was applied more often, and in the epoch of Charles I it already was the recognized constitutional means of protection of personal freedom.
The essence of the procedure of Habeas Corpus was that everyone, considering imprisoned incorrectly or illegally, could apply in the court of the Royal Bench (Such order existed up to edition of Habeas Corpus Act in 1679) and to apply about delivery to him of the order of Habeas Corpus. The given order directed by the court to the person (private or official), detained the applicant, so that it delivered the later in court. Thus the given person should inform the court about particularities on time, about the reasons of capture under arrest and the further detention of the applicant. The court immediately started the consideration of the circumstances of the case by way of the reduced legal proceedings and further determined, whether the given person was subjected to full and unconditional clearing, or could be released under the guarantee, or should be sent back in imprisonment.
It is necessary to notice, that such system of guarantees of personal freedom of citizens did not have general character and up to the edition of the Act about the better maintenance of freedom of the citizen and about prevention of imprisonment abroad (1679) the delivery of the order of Habeas Corpus was in full dependence on discretion of judges.
The following major step in maintenance of the rights of the person in England was the adoption of the Petition about rights, - the law belonging to the number of some acts, on which the English constitutional law was based, and which was named by lord Chatham of one of the three parts of "The Bible" (the Constitution; the two others - the Great Charter and the Bill of rights 1689) [59]. In particular, in relation to personal freedom the principal value of the given act was determined by the recognition of illegality of any withdrawals and exceptions of the general lawful order of imprisonment, even these withdrawals were made in the name of the supreme executive power - the king and his nearest advisers, members of the Secret council. This important principle has received in the Petition the final sanction and since then has not been exposed to contest.
The concept of the natural rights for the first time was legislatively fixed by the English parliament in the Bill of rights of 1689. However neither in nor other legislative monuments of England we can find mentioning of any born and natural rights of the person. The bill of rights in details listed the political rights both of the parliament, and of separate citizens, and was in essence the peace treaty which has put the last point in the long and persistent struggle between the royal authority and the parliament.
The rights of personal and public freedom have arisen in the struggle against universal police authority of the absolute state. This struggle for the first time has arisen on Anglo-Saxon ground where at the Tudors and the first Stewarts the police power of the state has reached its blossoming. The creator of the rights of freedom is the revolution of puritans; these rights have been proclaimed in Article 8 " Agreement of the People". In New England these rights have received the further development. The representation that each Englishman has the known "born rights” (" birth rights ") has been transferred by them from the native land. Under the influence of such English theorists, as M. Heil and J. Lock, they have come to belief that these initial rights of the Englishman had existed even before occurrence of the state communication, that they belonged to the person in the natural condition, and that therefore each legislator should consider them inalienable rights.
Unlike the continental Europe and England, positively-legal fixing of rights and freedom in Northern America has begun already at the level of the constituent documents which determined the status of the corresponding British colonies. It is well-known, that history of North American states begins from the event of formation in 1606 of the first English colony in Virginia. Thus, already in the Charter (1606), presented by the king of the Virginia trading company, there has been written down, that the inhabitants of the colony and their descendants " should fully enjoy all the existing in all other possession, privileges and inviolability as if they lived or were born in the kingdom of England or in any other possessions " [60]. The similar guarantees also contained in other colonial charters, for example, of the states of Massachusetts (1629), Maryland (1632), Maine (1639, 1664 and 1674), Connecticut (1663), Rhode Island (1663), Carolina (1665), Pennsylvania (1681) and the Massachusetts gulf (1691) [61].
In 1641 in Massachusetts there was adopted the so-called " Body of Liberties". Prepared by one of few experts on the English law N. Ward, this body of liberties gave the wide list of freedoms stipulated by the general law and the Great charter of liberties: equality of all before the law, the right to fair trial by the jury, the principle of competitiveness in the criminal trial, the right of freedom in movement, the right to lawyer protection, guarantee of the right of appeal. Besides in the " Body of Liberties "1641 there was stipulated the guarantee from severe and barbarous punishment, which became the norm of the English law only in 1689. And in 1648 there was adopted the " Body of Liberties " (" Laws and Liberties "),which reproduced even more in details "liberties" of " Body of Liberties " of 1641 and which became the model for composers of the laws in other colonies. So, at the end of XVII century in Pennsylvania there was created the effective system of protection of the individual rights and freedoms.
Soon "The Pennsylvania charter of privileges” (1701) proclaimed the freedom of worship which was understood as the freedom of any creeds, the right of all Christians to occupy the state posts, the right to lawyer protection and the giving of testimony to own advantage for all accused in commitment of criminal offences. The charter also fixed the right of the population to elect unicameral assembly which could prepare and offer bills, to pass laws, to assort complaints and to have other powers and privileges according to the rights of freely born British citizens and usual deeds, existing in other royal possessions in America.
Thus, by the beginning of the American Revolution in the states there had developed the certain tradition of political and legal culture, was clearly realized the necessity, on the one hand, of clearing from under the influence of the British empire, and on the other - the declaration of the natural, inalienable rights of the person. Accordingly there were developed own political and legal ideas and values. The wide circulation there got ideas of the natural origin of human rights, equality, contractual origin of the state, recognition of the rights and freedoms of the citizens, division of authorities, people's sovereignty, representative democracy, freedom of private business and some other. The recognition of born and inalienable rights and freedoms of the person proceeding from the human nature, gave the theoretical base for the conclusion that the state cannot break them; moreover, it is obliged to protect them. Otherwise the justified was proclaimed the struggle against the government violating the rights of the person.
G. Ellineck quite fairly noted: " During the XVIIIth century the natural-legal theories in connection with political and social relations which have found out groundlessness of many from then existed restrictions of individual freedom, generate in America the representation about the significant number of general rights of freedom which as the conditions of introduction of the individual in the state are for the later inviolable: the state has the right to warn only abusing them " [62]. Actually, by the time of separating of North American colonies from the mother country representation about these initial rights existing already up to the introduction of the individual in the state union and directly recognized by the state order, played rather significant role. Being exempted from the English domination, the colonies were convinced, that they did not make revolt but only protected their rights. The Constitutions of the colonies which achieved sovereignty, first of all the Constitution of Virginia, began with bills or declarations of the rights which, by their authors, should comprise the brief code of all legal claims of the individual in relation to the government.
It is necessary to note, that at early stages of development of North American colonies of the idea of rights and freedoms carried a strongly religious shade [63], and only in the course of time they began to be based on the theory of voluntary agreement of people, or the agrimentary theory.
One of the earliest declarations of human rights is contained in "The General Fundamentals " of New Plymouth (1671) in which there is guaranteed the freedom of a person, live, honour and property (Article IV: " That no person in this government shall be endamaged in respect of Life, Limb, Liberty, Good name or Estate "). Besides in this document there is guaranteed the freedom of belief and conscience, the freedom of the cult. In conclusion there is made the statement that these inalienable human rights cannot be cancelled by any human legislation. However, there still no that strict formulation of the subjective right which a century later appeared in declarations of human rights of the new-English colonies which have disappeared from England under the influence of such teachers of the natural right as M. Heil, J. Lock, S. Puffendorf and U. Blekston.
The specific is the constitution of Virginia from June 12, 1776 to which there is sent the so-called Bill of rights - the original analogue of the declaration of human rights. In the first article of this Declaration there is precisely proclaimed the natural nature of human rights: " All people by the nature are equally free and independent and possess the certain congenital rights of which they - at the introduction into the public condition - cannot deprive of themselves or their descendants by any agreement, namely the right to life and freedom by means of purchase and possession of the property, the right to aspiration to fortunately both safety and their purchase " [64].
The above-mentioned document has put the beginning the constitutional fixing of the rights and freedoms in the new state of the American continent. After next to it on July 4t, 1776 there was adopted the Declaration of independence of the USA which proclaimed formation of the new state, and also fixed some rights and freedoms, proceeding from their natural origin: " We believe axiomatic those trues, that all people are created equal, that they are allocated by their Creator with the certain inalienable rights, that are the life, freedom and aspiration to fortunate, that for maintenance of these rights among the people the states scooping the reasonable powers in the consent are operated” [65] are established.
As Lincoln notes about the Declaration more than half a century later after its, those who signed it, " simply wished to declare the rights that they could be realized as soon as circumstances allow. They wished to determine the standard of principles of the free society which would be familiar to all and would be esteemed by all, on which all would be equaled, for which all would struggle and try to come nearer to them, however, never, reaching them, and by that constantly expanding and deepening their value, introducing even greater happiness and value during in life of the people of any color of skin in any place”.
Following the Constitution of Virginia and the Declaration of independence in the same direction there were developed the constitutions of Pennsylvania (September 28, 1776), Maryland (November 11, 1776), Northern Carolina (December 18, 1776), Vermont (July 8, 1777), Massachusetts (March 2, 1780) and New-Hampshire (1783).
In 1786 the Assembly of Virginia adopted the Statute about establishment of the religious freedom which began with the words: " To the full understanding, that the Almighty Lord has created reason of the person free …", and came to the end with the caution: any restriction of the freedom of worship should be considered as " infringement of natural human rights " [66].
The adopted in 1787 the Constitution of the USA opened a new mark in development of the American rights and freedoms. From the analysis of the Constitution of the USA it is possible to draw the conclusion, that it contains a number of concrete interdictions against infringement of rights and freedoms of citizens. For example, speaking about the legislative branch of authority, Article I forbids stay of action of privileges of order of Habeas corpus, and also adoption of bills about disgrace and the laws having return force. Article III about the judicial branch of authority provides that all criminal cases are considered by the jury, and also establishes the necessity of presence of strict rules of proofs at condemnation for high treason. Article IV guarantees, that citizens of each state are given " privileges and privileges of citizens of other states", and Article VI forbids application of check of religiousness as a condition for occupation of state posts [67].
Certainly, as a whole the above-stated list of the constitutional positions hardly represents еру universal charter of the rights and freedoms. Having proclaimed many important democratic principles and guarantees of еру rights and freedoms, the Constitution of the USA at that time did not reproduce some basic ideas of the Declaration of independence, and kept the institute of slavery. Exactly for this reason the greater urgency got the prompt adoption of amendments to the Constitution, concerning the bases of the legal status of the person.
Absence in the Constitution 1787 of the full list of the rights and freedoms of citizens its "fathers-founders" proved by various arguments. Some of them proved, that the Constitution in itself was " the Bill of rights " [68]. The others considered that the special arch of the rights and freedoms was the constitutional excess. If the rights and freedoms are natural they do not require ostensibly the constitutional record. The thirds specified, that the rights and freedoms are already fixed by the constitutions of the separate states, that is why their reproduction in the Constitution of the USA is unduly. For this the critics of the project reasonably objected, that if the federal Constitution, similarly to Articles of Confederation, united not the population of the country, but the states, keeping their sovereignty then the position of its composers would be clear, but as the federal Constitution is declared by the supreme law in relation to the Constitutions of states, inclusion in it of "the Bill of rights” is simply obligatory [69]. Some states demanded to add the Constitution of the USA "with the Bill of rights”, refusing to ratify it [70].
Such first ten amendments which received the name of "Bill of rights”, were adopted by the Congress in 1789 and came into force in 1791 after ratification by two thirds of states. However, some authors quite reasonably consider that "the Bill of rights” was brought by the supporters of the Constitution more likely as the concession for ratification of the Constitution by states in which positions of antifederalists [71] were strong.
The amendments making "Bill of rights”, guarantee the freedom of religion, speech and press. They also proclaim the right of the citizens to peaceful assemblies, to submission of petition to the government for consideration of complaints, to carrying of the weapon, to protection of the person, house, documents and property against unreasonable search or confiscation, to court proceeding and public, impartial and duly consideration of legal proceeding by the jury. Though we can come across the opinion, that during adoption "Bill of rights” was considered not as declaration of human rights but as the means for protection of the rights of states against excessive encroachments of the federal government, and that consideration of "Bill of rights” as the act which proclaimed human rights, has begun later, mainly in decisions of the Supreme court [72].
In much fuller and detailed form the formulation of the rights of the person is contained in the constitutions of separate states. In the majority of them, not excepting even the constitutions which received the final wording at the end of the ХІХ century, there is contained the reproduction of principles of Declaration of Independence. So, for example, the first chapter of the Constitution of state of California of 1879 is directly entitled: "the Declaration of rights” and says: "All people by nature are free and independent and have some inalienable laws to which there belongs the right to use life and freedom and to protect them, the right to get, own and protect the property, the right to aspire to safety and happiness and to achieve them. Free choice of religion is for ever provided in this state. Using the act about personal freedom (Habeas corpus) can be stopped only in case of mutiny or enemy invasion. The right to have legal proceedings by the jury should be provided for all. Each citizen can freely speak, write and publicly express the ideas about everything, being exposed to the responsibility solely for abusing this right. People should have the right to gather for discussion of public interests. The person and dwelling should be protected from any arrests and searches” [73].
North American documents have served the prototypes for the French Constituent Assembly of 1789 which under the influence of Lafayette has started development of "the Declaration of human rights". After long debates in which basis there have been put numerous projects, it was adopted on August 26, 1789 in the form of the Declaration of human rights of a person and a citizen. The declaration allocated the freedom of a person, the freedom of speech and press, the freedom of worship. Absence in this document of the freedom of assembly and unions was determined by animosities of legislators to mass actions and public organizations and was explained by the dominated in the theory of the natural right to negative attitude to any sort of unions.
As the sample for the Declaration there have served the definitions of the American bills of rights. It was entered into the Constitution of 1791 and repeated with separate changes in the two following French constitutions. Thus the Constitution of 1791 has a little expanded the former circle of the rights and freedoms. In section "the Substantive provisions provided by the constitution” there have been proclaimed some rights and freedoms which have not been mentioned in the Declaration of 1789, in particular the freedom of worship and the freedom of assembly.
After coming to power of Jacobins in June 1793, there was adopted the new constitution which was also opened with the Declaration of rights of a person and a citizen. In Article 2 among natural and inalienable rights of the person besides the freedom, safety and property there has also been named equality.
Some French authors, in particular Butmi, confirmed, that the French Declaration of rights of a person and a citizen is an original product of the French national spirit and, in particular, as if was taken from the works of J. J.russoaccording to whose doctrine the person has the integral born rights and can alienate their certain part, but only voluntarily, by means of the public contract. However this view can hardly be considered proved as J. J.russo did not recognize in relation to almighty " general will” (" volonte generale ") any borders, including in the form of inalienable human rights. German lawyer Ellineck has subjected to the proved criticism this theory of the French vanity and has evidently shown the American origin of the Declaration. Thus Ellineck based on the works of W. Blackstone in which there is the formulation of the rights of the individual. However the Declaration of 1789 had also older theoretical preconditions, in particular the works of the English jurist of XVII century lord M. Heil who in his "The analysis of the civil part of Laws " has given the successful formulation of the rights of freedom of Englishmen as the subjective rights. Under the title ” About the rights of people and the citizen " the above mentioned author wrote: ” Rights of the people and their freedoms in relation to the king and to all subordinated to the king, city councils is in the fact that (i. e. to members of people) there should be provided their life, freedom and the property”.
In the constitutionally-legal doctrine of XIX century presence of the certain declaration or charter of human rights as the independent political and legal document previous to the constitution and even possessing the supreme in comparison with its validity, there was considered as an attributive sign of the democratic state, original reflection of the public contract laying in its basis. The well known Polish lawyer, professor of royal Academy in Poznan J. Gachek formulated this position as follows: ” The main function of the rights of freedom in democracy lays in exhibiting the catalogue of the subjective rights which is premised to any constitution which should be recognized by any constitution of the states and be inviolable for the common legislator. This originality of the rights of freedom of a person, making the contract forming the basis of the state, gives to them that mysterious force which to these rights had attributed the former democratic constitutional legislators. This mysterious force is that these rights as though are guaranteed by those constitutions to which they are premised. They, thus, are the essence of the guarantee of the constitution " [74].
From the text of the French constitutions the Declaration of the rights of a person and a citizen has made the procession through Europe, and further thorough Central and South America. In the same theoretical form these resolutions were included into the constitutions of 1791, 1793 and 1795; then they disappeared from the French constitutions, and beginning with the Constitution of VIII, and only once appeared again, in the constitution of 1848 (" the French republic has the principle of freedom, equality and brotherhood; its basis is family, labour, property, public order "). The statement of the given principles in the form of declarations in the later constitutions is replaced with the formulation of the same principles having a more legal character, and the so-called " constitutional guarantees of the rights of a person". In many constitutions the both forms are close to each other, so, already in the constitution of 1791 there contains the position having the form of the constitutional guarantee: " The legislative power cannot publish any law which would paralyze or interfere realization of the natural and civil rights listed in the present chapter and guaranteed by the constitution”. In the constitution of VIII the uncertain and wide position of the first constitutions about freedom from any arrest is replaced with the exact, quite legally formulated, thesis: " So that the resolution about arrest could be resulted in execution, 1) in it there should be definitely specified the reason of arrest and the law on which it is based;
2) it should proceed from authority, authorized to it by the law;
3) it should be declared } to the person who is exposed to arrest, and this person should receive its copy” [75].
The institute of the rights and freedoms of a person, which received stipulation in the legislation of Great French revolution, has undoubtedly, rendered progressive influence not only in France, but also in many other countries. Its positions and principles were used in more than 70 constitutions adopted in the countries of Europe from 1795 till 1830 [76].
The quantum leap in positively-legal stipulation of the freedom of a person has
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