On the Nature of Human Rights with Regard to Types of Law Understanding

Abstract

The article raises the problem of understanding human rights in their relationship with the type of law understanding. Legal positivism, sociological positivism, theory of natural law and philosophical understanding of law (libertarian theory of law) stand out as the main approaches of law. It is noted that the normative approach involves the direct dependence of human rights on the will of the state; it does not matter the content of the right, but its formal consolidation in the law. The sociological approach, also within the framework of the legalist direction of law understanding, in contrast to legal positivism, connects human rights not with the state, but with social life, as a product of the development of society, and considers their existence not in law, but in legal relations. The natural law approach to understanding law is considered primarily as a definite stage in the development of ideas about law. Human rights in this context are considered as an expression of human freedom of choice and action, having a natural nature. However, in the modern world, such rights should be formally enshrined, reflecting the value aspect of law. The libertarian theory of Professor V.S. Nersesyants also reflects the idea of the meaning of freedom for the existence of a right that is different from the law, but recognizes the existence of human rights both natural and dependent on the will of the state. The authors conclude that the essential characteristics of human rights derived from the content of these types of law understanding in modern constitutional law have formed a symbiotic approach, In other words, the modern conception of human rights is based on all these types of law understanding.