ПОТРЕБОВИЙ ПІДХІД У ДОСЛІДЖЕННІ ПРАВОВИХ ЯВИЩ: ВІТЧИЗНЯНИЙ ТА ІНОЗЕМНИЙ ДОСВІДИ

Abstract

The article is devoted to the comparative legal analysis of domestic and foreign experience of the needs approach. It is established that Professor P. Rabinovych made a significant contribution to the development of the issue on the importance of legal regulation to meet the needs of the domestic general theory of law. He was the first to introduce into scientific circulation the term «needs approach» as the idea that the essence of social phenomena are those useful characteristics that can be used by man and society to meet their needs and interests. Associate professors V. Bigun, R. Gavrilyuk, D. Hudyma, Y. Loboda, O. Pankevych, A. Rabinovych, as well as Professor S. Rabinovych and others developed his ideas on the application of the needs approach in their scientific works. Consequently, R. Gavrilyuk defined that law is a way of normative existence of an individual in the society based on the freedom of expression to satisfy his/her personal (private) and general (public) needs on the basis of freedom, equality and justice. O. Pankevych applied the needs approach to establish the essence of the social state, as well as to define the concept of social law, its subject, method and status in the system of positive law. D. Hudyma used the term «need» to reveal the meaning of «the essence of law», to define the need-researching approach as a kind of anthropological approach and argues that «law is objectively designed to help meet human needs.» A. Rabinovych noted that at least two preconditions must be provided for the use of the needs approach: 1) it is necessary to comprehend the general understanding of the needs of subjects, as well as to identify the main types of these needs through their classification; 2) it is necessary to acquire a meaningful knowledge of general social, group and individual needs in the society in which the studied phenomenon was formed and exists. It is found that in the modern European and Australian scientific literature, the theory of the needs approach as a justification of human rights has become somewhat widespread. Fundamental representatives of these theories are Czech jurist Martin Gapla, British political scholar David Miller, professor at the Royal College of Great Britain Massimo Renzo, professor of medical ethics at the University of London Len Doyal, professor at the British Research Center for Social Exclusion Ian Gaff, as well as the Australian scholar James Griffin. The essence of the above approach, in their opinion, is the following: – human needs, namely universal, are the basis for human rights. Such human rights are considered «real» and are able to create and ensure a dignified human life; – people with full capacity are «regulatory agents», that is their needs, the number of which grows over time and are constantly improving, serve as a basis for the creation of regulations, making them, thus, both a guarantor and a tool to meet them; – the effective functioning of legislation depends on the successful functioning of means and mechanisms to meet human needs, which legitimize certain rules of law.