«Законные интересы»: традиционный взгляд (позитивистская интерпретация) и оценка в контексте естественно-правовой природы прав человека

Abstract

In theoretical jurisprudence and legal practice the concept of “legitimate interests” to a large extent retains legal uncertainty. This concept has acquired categorical meaning in the conditions of domination in jurisprudence of positivism methodology, from the position of which only the fixation of rights in the legislation gives their bearers the legal possibility of their full-fledged realization and protection. Introduced into circulation by the representatives of legal positivism, the concept of “legitimate interests” also acquired a specific meaning: these are the interests that are subject to legal protection and defense, but not to the extent that is typical for interests, the satisfaction of which is associated with the provision of their bearer of subjective right. The value of this understanding turns out to be insignificant.
 In a broad, constitutional-legal sense, legally protected interests (not “legitimate interests”) are the same rights, but rights that have not “matured”, not legally formalized as a subjective right; it is also the legal form of the existence of an interest and the right corresponding to it. Over time and under the influence of certain factors, legal interests, as a result, of taking root in public practice or legislative registration, pass into the category of “full-fledged” rights. It is presumed that in the legal toolkit, “legal interests” perform (replace) the function of a special legal mechanism (tool) of protection of the part of socially acceptable interests that are not mediated in the form of subjective rights. From this point of view, it is more important for the legislator not to strive for all new interests to be relegated to the category of subjective rights, which is practically impossible to do (national law would then acquire an indefinite character with poorly expressed regulatory principles); it is more important to equip the constitutional system with effective mechanisms for the protection and defense of all social interests of any significance. This approach best meets the main constitutional clause — the recognition of the individual, his rights and freedoms as the highest value of society.