Subjective public rights and the problem of the certainty of the legal status of the individual

Abstract

The article is devoted to the analysis of the development of perceptions of human rights and freedoms from the understanding of them as “reflexes” of objective law to the recognition of self-sufficient, independent of the establishment in positive law of subjective public rights. At the same time, the author raises the problem of the certainty of the content of subjective public rights: if fundamental rights and freedoms determine the meaning and content of positive law, what determines the content of the rights and freedoms themselves? This problem is dealt with in the article in connection with the justice of fundamental rights and freedoms, the possibility of their direct effect, the generation of rights of new generations (the fourth generation of rights). In the framework of the research, great attention is paid to the works of classics of the theory of human rights and freedoms both in the world legal literature (R. Jering, G. Ellinek, J. Carbonier, M. Kumm, etc.), and Russian legal scholars (B. Kistyakovsky, Yu. Gambarov, Y. Magaziner, etc.). In order to achieve the purpose of the study, the author uses both the popular scientific dialectical method, which allows to understand the ambivalence of understanding of the legal categories under consideration, as well as methods of formal logic, comparative method, system-structural method, etc. As a result of the study, the author concludes that the specific nature of fundamental rights and freedoms lies in the system of addressing them: the State is the main addressee and the obliged person, and special justice is the possibility of direct protection, even in the absence of a sufficiently defined mechanism in legislation by national constitutional courts and inter-State bodies for the protection of human rights. The article provides a brief analysis of the so-called fourth-generation rights, justifies the conclusion that there is a distinction between individual claims, which are the result of the general principle of legal freedom – “permitted, all that is not prohibited” and valid subjective rights. According to the author, a wide range of “somatic rights” put forward in the special literature is essentially such individual claims and closer to the notion of “legal reflex” than a valid subjective right.