Human rights in the context of the legal positivism.

Abstract

This article analyzes the main ideas of the legal positivism in terms of its interaction with the human rights and freedoms. The objective of the article is to determine the meaning and content of the human rights in the context of the positivist doctrine of law as well as to substantiate the ways how to combat positivist treatment of human rights at the level of the national legal ideology.

It is noted that the human rights were not considered in the early positivist doctrines. At the same time, the later positivist doctrines were analyzed, which substantiate subjecting the individual rights to the needs of the society and denying the existence of the inalienable rights.

The main postulates of different categories of the legal positivism (national, social, anthropological) are summarized in the context of their treatment of human rights and freedoms. It is noted in the article that a crucial role of the state is recognized by all schools of the legal positivism because individual and social rights are incorporated only to the extent that they are recognized by the state. In that sense, promotion of social and individual interests, of human rights and freedoms is purely formal.

In the context of the legal positivism, the idea of inalienable human rights and freedoms makes no sense because it uses the notion of the ‘subjective right’, which derives from the objective law established by the state. This leads, in fact, to the denial of the highest social value of a human being, rights and freedoms of which are not prioritized.

This article determines the characteristics of the legal positivism reflected in practice which include unambiguous incorporation of the human rights into the law as well as of its extent and the order of its implementation; prevention of the abuse of rights and of the loose interpretation of rules of law by concerned persons; designation of the boundaries of lawful behavior and of legal remedies which is a formal prerequisite for the person’s certainty and safety; the recognition of certain actions as criminal being stable which protects the society from the unsubstantiated and meritless accusations; restriction by the law of public officials’ discretion by setting forth the framework of their competence.

It was proved that ignoring of the contents of positive rights neglects all these positive features of the legal positivism. This creates ideological preconditions for various types of the abuse of rights.

The article underlines the role of legal education as an important factor which affects critical treatment of the state and law. This allows to prevent the unlimited role of the state at the level of the legal ideology and, consequently, to preclude any violations of the human rights by the state.