Constitutional stipulation of freedom of a person
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Constitutional stipulation of freedom of a person
The antique classical legal theory and practice based on ethathist beginnings, has laid the foundation of modern doctrines about the organization of the state power, powers of bodies of the government and their officials, has given the mankind sets of samples of legal regulation of public relations. At the same time in the sphere of legal stipulation of the status of the person, especially in the relations with the state, there has been made very little. Political and legal thought and practice of the policy organization of the society have not yet known the concept of the rights of the person as the publicly-legal category. The condition of possession the rights in the antique policy was citizenship. The basic value of the policy — there was recognized not individual freedom of a person but collective freedom, that is the freedom of a person as the citizen of the policy, being the basis of the reasonable law and order in the society.
For the free citizens of policies there were recognized certain measures of possible behaviour, however on their contents, ways of stipulation and protection they essentially differed from habitual to us rights and freedoms of a person and a citizen. It is necessary to note, that in the antique states the person did not enjoy freedom in its modern understanding. Alin did not have representation about it and did not assume, that in relation to the state it was possible to enjoy any rights. The citizens of policies identified themselves with the state, its purposes and aspirations. Nevertheless, according to A. V. Ilyin, exactly in antique policies «the legal system of the West based takes its beginning based on the private property and active role of an individual, the citizen-proprietor, whose personal advantage, rights and freedoms are protected by the right from all penetrating and breaking state dictatorship, violence and robbery «.
The Roman jurisprudence has issued the previous representations about the place and role of the person in the society and in the form of full legal capability. In this full legal capability of the Roman citizen there existed the political component — jus suffragii and jus honorum . However filling of the political status of the Roman citizen was considered, most likely, as admitted and has not received stipulation in the form of more or less concrete list of measures of behaviour.
Positive and legal stipulation of various displays of freedom of the person is indissolubly connected with ideas of medieval youth naturalism, which was under influence of Christian dogmatics. In the Middle Ages the rights were understood as the privileges granted by the seigneur to the vassals. Feudalism, on the one hand, and church with its religious intolerance, on the other hand, have done to block all to way to aspirations of the person to political freedom, freedom of worship. The question about the real rights of wide layers of the society did not exist. The codes of that time of the rights to political and civil freedom, freedom of worship were not universal and were recognized only for one layer of the society — the nobility .
Feudal charters have become historically first, internally inconsistent and not always consecutively stipulated rights and freedom of a person. The vivid example of such documents can serve the Gold Bulla of King Andrew II (1222), Gold Bulla of Emperor Charles IV (1356), Koshit privilege of king Lui Hungarian (1374), Petrakov statute (1496), etc. However the most well-known of such codes is the Great charter of liberties (1215). Its adoption was the political result of the struggle developed in England between the monarch and antiroyal coalition, headed by barons and the supreme clergy, dissatisfied with unreasonable taxes of royal authorities. There for the first time was legislatively stipulated the principle of civil freedom. It was proclaimed in Article 39 of the Great Charter: «Any free person will not be arrested, or imprisoned, or deprived of possessions, or declared outside the law, or expelled, or made destitute, and we shall apply to him only lawful verdict under the law of the country.» . The charter also has stipulated freedom of church (Article 1, 63), freedom of movement (Article 42); creation of the organization which should provide inviolability of the rights of the people (Article 61). Thus, at the beginning of XIII century for the English citizens there was recognized the right of personal freedom, and it was not only recognized, but provided.
The great Russian lawyer A. D. Gradovskiy has noted: «In the Great Charter there has found expression the known minimum of the political requirements developed by the English nation. All the others have grown from it, as from the initial crystal. But it was not simple mechanical process, on the contrary, the essence of English freedom and English establishment changed under the influence of the latest conditions of the national life «.
In the subsequent in practice of protection of the right of personal freedom great distribution has got the order of Habeas Corpus. It is not known when and under what circumstances there happened the occurrence of the given order. However in the first half of the XV centuries it was often applied. Originally it was applied as the means of restoration of freedom violated by private persons, but a since the times of Henry VII (1485−1509) it began to be applied in events of imprisonment of representatives of authorities . Later the order of Habeas Corpus was applied more often, and in the epoch of Charles I it already was the recognized constitutional means of protection of personal freedom.
The essence of the procedure of Habeas Corpus was that everyone, considering imprisoned incorrectly or illegally, could apply in the court of the Royal Bench (Such order existed up to edition of Habeas Corpus Act in 1679) and to apply about delivery to him of the order of Habeas Corpus. The given order directed by the court to the person (private or official), detained the applicant, so that it delivered the later in court. Thus the given person should inform the court about particularities on time, about the reasons of capture under arrest and the further detention of the applicant. The court immediately started the consideration of the circumstances of the case by way of the reduced legal proceedings and further determined, whether the given person was subjected to full and unconditional clearing, or could be released under the guarantee, or should be sent back in imprisonment.
It is necessary to notice, that such system of guarantees of personal freedom of citizens did not have general character and up to the edition of the Act about the better maintenance of freedom of the citizen and about prevention of imprisonment abroad (1679) the delivery of the order of Habeas Corpus was in full dependence on discretion of judges.
The following major step in maintenance of the rights of the person in England was the adoption of the Petition about rights, — the law belonging to the number of some acts, on which the English constitutional law was based, and which was named by lord Chatham of one of the three parts of «The Bible» (the Constitution; the two others — the Great Charter and the Bill of rights 1689) . In particular, in relation to personal freedom the principal value of the given act was determined by the recognition of illegality of any withdrawals and exceptions of the general lawful order of imprisonment, even these withdrawals were made in the name of the supreme executive power — the king and his nearest advisers, members of the Secret council. This important principle has received in the Petition the final sanction and since then has not been exposed to contest.
The concept of the natural rights for the first time was legislatively fixed by the English parliament in the Bill of rights of 1689. However neither in nor other legislative monuments of England we can find mentioning of any born and natural rights of the person. The bill of rights in details listed the political rights both of the parliament, and of separate citizens, and was in essence the peace treaty which has put the last point in the long and persistent struggle between the royal authority and the parliament.
The rights of personal and public freedom have arisen in the struggle against universal police authority of the absolute state. This struggle for the first time has arisen on Anglo-Saxon ground where at the Tudors and the first Stewarts the police power of the state has reached its blossoming. The creator of the rights of freedom is the revolution of puritans; these rights have been proclaimed in Article 8 «Agreement of the People». In New England these rights have received the further development. The representation that each Englishman has the known «born rights» («birth rights «) has been transferred by them from the native land. Under the influence of such English theorists, as M. Heil and J. Lock, they have come to belief that these initial rights of the Englishman had existed even before occurrence of the state communication, that they belonged to the person in the natural condition, and that therefore each legislator should consider them inalienable rights.
Unlike the continental Europe and England, positively-legal fixing of rights and freedom in Northern America has begun already at the level of the constituent documents which determined the status of the corresponding British colonies. It is well-known, that history of North American states begins from the event of formation in 1606 of the first English colony in Virginia. Thus, already in the Charter (1606), presented by the king of the Virginia trading company, there has been written down, that the inhabitants of the colony and their descendants «should fully enjoy all the existing in all other possession, privileges and inviolability as if they lived or were born in the kingdom of England or in any other possessions «. The similar guarantees also contained in other colonial charters, for example, of the states of Massachusetts (1629), Maryland (1632), Maine (1639, 1664 and 1674), Connecticut (1663), Rhode Island (1663), Carolina (1665), Pennsylvania (1681) and the Massachusetts gulf (1691) .
In 1641 in Massachusetts there was adopted the so-called «Body of Liberties». Prepared by one of few experts on the English law N. Ward, this body of liberties gave the wide list of freedoms stipulated by the general law and the Great charter of liberties: equality of all before the law, the right to fair trial by the jury, the principle of competitiveness in the criminal trial, the right of freedom in movement, the right to lawyer protection, guarantee of the right of appeal. Besides in the «Body of Liberties «1641 there was stipulated the guarantee from severe and barbarous punishment, which became the norm of the English law only in 1689. And in 1648 there was adopted the «Body of Liberties «(» Laws and Liberties «), which reproduced even more in details «liberties» of «Body of Liberties «of 1641 and which became the model for composers of the laws in other colonies. So, at the end of XVII century in Pennsylvania there was created the effective system of protection of the individual rights and freedoms.
constitution person right freedom
Soon «The Pennsylvania charter of privileges» (1701) proclaimed the freedom of worship which was understood as the freedom of any creeds, the right of all Christians to occupy the state posts, the right to lawyer protection and the giving of testimony to own advantage for all accused in commitment of criminal offences. The charter also fixed the right of the population to elect unicameral assembly which could prepare and offer bills, to pass laws, to assort complaints and to have other powers and privileges according to the rights of freely born British citizens and usual deeds, existing in other royal possessions in America.
Thus, by the beginning of the American Revolution in the states there had developed the certain tradition of political and legal culture, was clearly realized the necessity, on the one hand, of clearing from under the influence of the British empire, and on the other — the declaration of the natural, inalienable rights of the person. Accordingly there were developed own political and legal ideas and values. The wide circulation there got ideas of the natural origin of human rights, equality, contractual origin of the state, recognition of the rights and freedoms of the citizens, division of authorities, people’s sovereignty, representative democracy, freedom of private business and some other. The recognition of born and inalienable rights and freedoms of the person proceeding from the human nature, gave the theoretical base for the conclusion that the state cannot break them; moreover, it is obliged to protect them. Otherwise the justified was proclaimed the struggle against the government violating the rights of the person.
G. Ellineck quite fairly noted: «During the XVIIIth century the natural-legal theories in connection with political and social relations which have found out groundlessness of many from then existed restrictions of individual freedom, generate in America the representation about the significant number of general rights of freedom which as the conditions of introduction of the individual in the state are for the later inviolable: the state has the right to warn only abusing them «. Actually, by the time of separating of North American colonies from the mother country representation about these initial rights existing already up to the introduction of the individual in the state union and directly recognized by the state order, played rather significant role. Being exempted from the English domination, the colonies were convinced, that they did not make revolt but only protected their rights. The Constitutions of the colonies which achieved sovereignty, first of all the Constitution of Virginia, began with bills or declarations of the rights which, by their authors, should comprise the brief code of all legal claims of the individual in relation to the government.
It is necessary to note, that at early stages of development of North American colonies of the idea of rights and freedoms carried a strongly religious shade , and only in the course of time they began to be based on the theory of voluntary agreement of people, or the agrimentary theory.
One of the earliest declarations of human rights is contained in «The General Fundamentals «of New Plymouth (1671) in which there is guaranteed the freedom of a person, live, honour and property (Article IV: «That no person in this government shall be endamaged in respect of Life, Limb, Liberty, Good name or Estate «). Besides in this document there is guaranteed the freedom of belief and conscience, the freedom of the cult. In conclusion there is made the statement that these inalienable human rights cannot be cancelled by any human legislation. However, there still no that strict formulation of the subjective right which a century later appeared in declarations of human rights of the new-English colonies which have disappeared from England under the influence of such teachers of the natural right as M. Heil, J. Lock, S. Puffendorf and U. Blekston.
The specific is the constitution of Virginia from June 12, 1776 to which there is sent the so-called Bill of rights — the original analogue of the declaration of human rights. In the first article of this Declaration there is precisely proclaimed the natural nature of human rights: «All people by the nature are equally free and independent and possess the certain congenital rights of which they — at the introduction into the public condition — cannot deprive of themselves or their descendants by any agreement, namely the right to life and freedom by means of purchase and possession of the property, the right to aspiration to fortunately both safety and their purchase «.
The above-mentioned document has put the beginning the constitutional fixing of the rights and freedoms in the new state of the American continent. After next to it on July 4t, 1776 there was adopted the Declaration of independence of the USA which proclaimed formation of the new state, and also fixed some rights and freedoms, proceeding from their natural origin: «We believe axiomatic those trues, that all people are created equal, that they are allocated by their Creator with the certain inalienable rights, that are the life, freedom and aspiration to fortunate, that for maintenance of these rights among the people the states scooping the reasonable powers in the consent are operated»  are established.
As Lincoln notes about the Declaration more than half a century later after its, those who signed it, «simply wished to declare the rights that they could be realized as soon as circumstances allow. They wished to determine the standard of principles of the free society which would be familiar to all and would be esteemed by all, on which all would be equaled, for which all would struggle and try to come nearer to them, however, never, reaching them, and by that constantly expanding and deepening their value, introducing even greater happiness and value during in life of the people of any color of skin in any place».
Following the Constitution of Virginia and the Declaration of independence in the same direction there were developed the constitutions of Pennsylvania (September 28, 1776), Maryland (November 11, 1776), Northern Carolina (December 18, 1776), Vermont (July 8, 1777), Massachusetts (March 2, 1780) and New-Hampshire (1783).
In 1786 the Assembly of Virginia adopted the Statute about establishment of the religious freedom which began with the words: «To the full understanding, that the Almighty Lord has created reason of the person free …», and came to the end with the caution: any restriction of the freedom of worship should be considered as «infringement of natural human rights «.
The adopted in 1787 the Constitution of the USA opened a new mark in development of the American rights and freedoms. From the analysis of the Constitution of the USA it is possible to draw the conclusion, that it contains a number of concrete interdictions against infringement of rights and freedoms of citizens. For example, speaking about the legislative branch of authority, Article I forbids stay of action of privileges of order of Habeas corpus, and also adoption of bills about disgrace and the laws having return force. Article III about the judicial branch of authority provides that all criminal cases are considered by the jury, and also establishes the necessity of presence of strict rules of proofs at condemnation for high treason. Article IV guarantees, that citizens of each state are given «privileges and privileges of citizens of other states», and Article VI forbids application of check of religiousness as a condition for occupation of state posts .
Certainly, as a whole the above-stated list of the constitutional positions hardly represents еру universal charter of the rights and freedoms. Having proclaimed many important democratic principles and guarantees of еру rights and freedoms, the Constitution of the USA at that time did not reproduce some basic ideas of the Declaration of independence, and kept the institute of slavery. Exactly for this reason the greater urgency got the prompt adoption of amendments to the Constitution, concerning the bases of the legal status of the person.
Absence in the Constitution 1787 of the full list of the rights and freedoms of citizens its «fathers-founders» proved by various arguments. Some of them proved, that the Constitution in itself was «the Bill of rights «. The others considered that the special arch of the rights and freedoms was the constitutional excess. If the rights and freedoms are natural they do not require ostensibly the constitutional record. The thirds specified, that the rights and freedoms are already fixed by the constitutions of the separate states, that is why their reproduction in the Constitution of the USA is unduly. For this the critics of the project reasonably objected, that if the federal Constitution, similarly to Articles of Confederation, united not the population of the country, but the states, keeping their sovereignty then the position of its composers would be clear, but as the federal Constitution is declared by the supreme law in relation to the Constitutions of states, inclusion in it of «the Bill of rights» is simply obligatory . Some states demanded to add the Constitution of the USA «with the Bill of rights», refusing to ratify it .
Such first ten amendments which received the name of «Bill of rights», were adopted by the Congress in 1789 and came into force in 1791 after ratification by two thirds of states. However, some authors quite reasonably consider that «the Bill of rights» was brought by the supporters of the Constitution more likely as the concession for ratification of the Constitution by states in which positions of antifederalists  were strong.
The amendments making «Bill of rights», guarantee the freedom of religion, speech and press. They also proclaim the right of the citizens to peaceful assemblies, to submission of petition to the government for consideration of complaints, to carrying of the weapon, to protection of the person, house, documents and property against unreasonable search or confiscation, to court proceeding and public, impartial and duly consideration of legal proceeding by the jury. Though we can come across the opinion, that during adoption «Bill of rights» was considered not as declaration of human rights but as the means for protection of the rights of states against excessive encroachments of the federal government, and that consideration of «Bill of rights» as the act which proclaimed human rights, has begun later, mainly in decisions of the Supreme court .
In much fuller and detailed form the formulation of the rights of the person is contained in the constitutions of separate states. In the majority of them, not excepting even the constitutions which received the final wording at the end of the ХІХ century, there is contained the reproduction of principles of Declaration of Independence. So, for example, the first chapter of the Constitution of state of California of 1879 is directly entitled: «the Declaration of rights» and says: «All people by nature are free and independent and have some inalienable laws to which there belongs the right to use life and freedom and to protect them, the right to get, own and protect the property, the right to aspire to safety and happiness and to achieve them. Free choice of religion is for ever provided in this state. Using the act about personal freedom (Habeas corpus) can be stopped only in case of mutiny or enemy invasion. The right to have legal proceedings by the jury should be provided for all. Each citizen can freely speak, write and publicly express the ideas about everything, being exposed to the responsibility solely for abusing this right. People should have the right to gather for discussion of public interests. The person and dwelling should be protected from any arrests and searches» .
North American documents have served the prototypes for the French Constituent Assembly of 1789 which under the influence of Lafayette has started development of «the Declaration of human rights». After long debates in which basis there have been put numerous projects, it was adopted on August 26, 1789 in the form of the Declaration of human rights of a person and a citizen. The declaration allocated the freedom of a person, the freedom of speech and press, the freedom of worship. Absence in this document of the freedom of assembly and unions was determined by animosities of legislators to mass actions and public organizations and was explained by the dominated in the theory of the natural right to negative attitude to any sort of unions.
As the sample for the Declaration there have served the definitions of the American bills of rights. It was entered into the Constitution of 1791 and repeated with separate changes in the two following French constitutions. Thus the Constitution of 1791 has a little expanded the former circle of the rights and freedoms. In section «the Substantive provisions provided by the constitution» there have been proclaimed some rights and freedoms which have not been mentioned in the Declaration of 1789, in particular the freedom of worship and the freedom of assembly.
After coming to power of Jacobins in June 1793, there was adopted the new constitution which was also opened with the Declaration of rights of a person and a citizen. In Article 2 among natural and inalienable rights of the person besides the freedom, safety and property there has also been named equality.
Some French authors, in particular Butmi, confirmed, that the French Declaration of rights of a person and a citizen is an original product of the French national spirit and, in particular, as if was taken from the works of J. J. russoaccording to whose doctrine the person has the integral born rights and can alienate their certain part, but only voluntarily, by means of the public contract. However this view can hardly be considered proved as J. J. russo did not recognize in relation to almighty «general will» («volonte generale «) any borders, including in the form of inalienable human rights. German lawyer Ellineck has subjected to the proved criticism this theory of the French vanity and has evidently shown the American origin of the Declaration. Thus Ellineck based on the works of W. Blackstone in which there is the formulation of the rights of the individual. However the Declaration of 1789 had also older theoretical preconditions, in particular the works of the English jurist of XVII century lord M. Heil who in his «The analysis of the civil part of Laws «has given the successful formulation of the rights of freedom of Englishmen as the subjective rights. Under the title «About the rights of people and the citizen «the above mentioned author wrote: «Rights of the people and their freedoms in relation to the king and to all subordinated to the king, city councils is in the fact that (i. e. to members of people) there should be provided their life, freedom and the property».
In the constitutionally-legal doctrine of XIX century presence of the certain declaration or charter of human rights as the independent political and legal document previous to the constitution and even possessing the supreme in comparison with its validity, there was considered as an attributive sign of the democratic state, original reflection of the public contract laying in its basis. The well known Polish lawyer, professor of royal Academy in Poznan J. Gachek formulated this position as follows: «The main function of the rights of freedom in democracy lays in exhibiting the catalogue of the subjective rights which is premised to any constitution which should be recognized by any constitution of the states and be inviolable for the common legislator. This originality of the rights of freedom of a person, making the contract forming the basis of the state, gives to them that mysterious force which to these rights had attributed the former democratic constitutional legislators. This mysterious force is that these rights as though are guaranteed by those constitutions to which they are premised. They, thus, are the essence of the guarantee of the constitution «.
From the text of the French constitutions the Declaration of the rights of a person and a citizen has made the procession through Europe, and further thorough Central and South America. In the same theoretical form these resolutions were included into the constitutions of 1791, 1793 and 1795; then they disappeared from the French constitutions, and beginning with the Constitution of VIII, and only once appeared again, in the constitution of 1848 («the French republic has the principle of freedom, equality and brotherhood; its basis is family, labour, property, public order «). The statement of the given principles in the form of declarations in the later constitutions is replaced with the formulation of the same principles having a more legal character, and the so-called «constitutional guarantees of the rights of a person». In many constitutions the both forms are close to each other, so, already in the constitution of 1791 there contains the position having the form of the constitutional guarantee: «The legislative power cannot publish any law which would paralyze or interfere realization of the natural and civil rights listed in the present chapter and guaranteed by the constitution». In the constitution of VIII the uncertain and wide position of the first constitutions about freedom from any arrest is replaced with the exact, quite legally formulated, thesis: «So that the resolution about arrest could be resulted in execution, 1) in it there should be definitely specified the reason of arrest and the law on which it is based;
2) it should proceed from authority, authorized to it by the law;
3) it should be declared } to the person who is exposed to arrest, and this person should receive its copy" .
The institute of the rights and freedoms of a person, which received stipulation in the legislation of Great French revolution, has undoubtedly, rendered progressive influence not only in France, but also in many other countries. Its positions and principles were used in more than 70 constitutions adopted in the countries of Europe from 1795 till 1830 .
The quantum leap in positively-legal stipulation of the freedom of a person has become the Belgian constitution of 1831 which for the first time contained the special section, devoted to the rights of citizens (Section II «The Belgians and their rights «) . At the same time it proclaimed much wider list of the rights of a person, than any other of its contemporaries, including personal freedom (Article 7), inviolability of dwelling (Article 10) and private property (Article 11), freedom of creeds (Article 14), academic freedom (Article 17), freedom of press (Article 18), a freedom of assemblies (Article 19) and unions (Article 20), freedom of petitions (Article 21) and secret of correspondence (Article 22). Influence of the Belgian constitution, in turn, was reflected in numerous subsequent constitutions. The development of such catalogue of the fundamental rights has played the significant role, in particular, in the constitutional movement of 1848−1849 in Germany and Austria.
For example, the Constitution of Prussia from January 31, 1850, on the sample of the Belgian constitution contained the special chapter «About the rights of Prussian citizens», and this chapter was the second, right after the articles about the territory of the state . Thus the Prussian legislator let it know, what essential attention was given to the constitutional status of the person. This chapter contained forty articles and was the most volumetric in the text of the constitution. In it in particular there contained as the widest for that time the list of the civil freedoms, including the freedom of the person (Article. 5), resettlements (Article 11), creeds (Article 12), science and teaching (Article 20), opinions, speech and press (Article 27), peace assemblies (Article 29), unions (Article 30), petitions (Article 32). In aggregate with stipulation of the principle of equality of all before the law (Article 4), interdiction to creation of extreme courts (Article 7), interdiction of civil death and confiscation of property (Article item 10), declaration of inviolability of property (Article 9) and secrets of correspondence (Article 33) it put the Prussian constitution in the category of the most democratic political and legal documents of the time.
By the end of XIX century the political and legal ideals of the freedom of a person had achieved Asia. The most remarkable in the given context has become the Constitution of the Japanese Empire (the Constitution of Maidzi) from February 11, 1889. The Second chapter of the given constitution contained habitual for the European constitutionalism of that time a set of the public rights of the person, including freedom of choice and of change of residence (Article 22), inviolability of dwelling (Article 25), secret of correspondence (Article 26), freedom of worship (Article 28), freedom of speech, press, assemblies and unions (Article 29), freedom of petitions (Article 30). The essential guarantee of the personal freedom and safety was position of Article 23 according to which nobody from the Japanese citizens could be arrested, imprisoned, caused on interrogation or inflicted to punishment otherwise in accordance with the laws .
By the beginning of the XX century the above stated list of the fundamental freedoms became traditional for the overwhelming majority of constitutions, except for the Constitution of the German empire from April 16, 1871  and the constitutional laws of France of 1875 . Separate constitutions of that time contained guarantees of the personal freedom even higher, than those contained in modern constitutions. For example, Article 80 of the Constitution of Denmark from July 28, 1866 required that any arrested person had to be presented to the judge within 24 hours , whereas Part 2 Article 22 of the working Constitution of Russia provides the opportunity of detention of the person up to the judgment for the term of 48 hours , and part 3 Article 29 of the working Constitution of Ukraine supposes imprisonment of a person as a provisional measure of suppression within the term of 72 hours while his validity is checked up by court .
It is necessary to note, that dominating minds on the freedom of a person of XIX century rather sharply differ from opinions of XVIII century on two parameters. First, in XVIII century there tried to reconcile the freedom of a person to limitlessness of authority of the state; in XIX century the conventional opinion is that these two principles mutually exclude each other and that the freedom of a person can develop only due to authority of the state which should not be unlimited. Second, in the XVIII century the principle of the freedom of a person was formed as a principle of the natural right; people were considered free and equal by nature and on birth; therefore there was an aspiration to determine precisely the border of this freedom on the basis of the theoretical and abstract analysis. Though this opinion was kept even in such late legal acts as the Californian constitution of 1879, but actually in the XIX century nobody seriously supported it. On the contrary, from the end of XIX century there has affirmed the opinion that the freedom of a person has arisen, as the principle of the right, rather late, developed slowly and gradually, is still developing and will develop further,; therefore it is impossible to specify precisely once and for all, times and people, the contents of this principle; the border between the spheres of the state and the freedom of a person changed and should change.
Under influence of these positions apprehended by constitutions there has appeared the doctrine about subjective public law. According to the V. V. Vodovozov, here sharply collide two different from each other cores of view: «The one recognizes the subjective public law homogeneous on structure with the right private from which it differs only on character of subjects of public legal relation: in the later there are opposed to each other the dominating state or the public union and the subordinated individual, as opposed to the private law based on coordination to the private right. The second denies existence of the subjective public law of the individual and sees that ordinarily designate this name, only the reflex of positions of the public law. The middle is occupied with a number of the transitive positions ordinarily based on ambiguities and contradictions» .
Steady expansion of the list of the subjective public rights required from the constitutionally-legal science of their appropriate ordering. At the end of XIX century in the political-legal theory there were traditionally allocated three categories of the subjective public rights though the constitutional practice, according to A. Dzhivelegov, «there has not still grown up to requirements of scientific classification» . The first category of these rights was determine by the attribute, that the state recognizes for the person the sphere of relations, absolutely free from his claims. The second category was determined by the recognition by the state for the person of the right to demand from it the known sort of services, positive activity in the certain direction. The third, at last, was determined by the recognition of the state for the person of the right to participation in government and in political activity in general. Exactly, the first category of the rights referred to the rights of personal and public freedom. These rights made the so-called negative status of the person or «status libertatis «on terminology of G. Ellineck  «That opportunity of the individual display of the person which remains minus its legal restrictions, — wrote G. Ellineck, — forms the sphere of freedom of the person. This freedom has not only the actual character — by virtue of restriction of the government and recognition of the person it has the legal sanction. The physical condition of freedom in which there is the person presented to himself, turns in legal condition owing to the recognition of such limited submission» .
Still in XVIII century «the classic» of the British constitutionalism W. Blackstone characterized the civil freedom as «the great purpose of all human societies and management: the state in which each individual has the right to achieve own happiness according to his views at his own interest and to follow the commands of the conscience which has been not limited by anything, except for fair, impartial and equal laws for all». As we see, in the XIX century this purpose got the precise constitutionally-legal outlines.
It was considered, that the personal rights belong to citizens as to the separate persons, subordinated to the government; they determine «the attitude of the personal freedom to authority «. Thus, traditionally there was focused that these rights serve as the important guarantee of free development of the person, forming the certain «protective zone» in relations with authorities. «Submitting to the government, the personal freedom is exposed to necessary restrictions whose definition depends on the supreme authority. But at the same time, as freedom in the state should be separated from arbitrariness, here are established the lawful guarantees for the persons, believing the limits to action of authorities» .
In the further classification the rights of the person became more and more developed. So, the well-known Russian lawyer B. N. Tchitcherin brought the following system of the personal rights of citizens:
1) the personal freedom;
2) inviolability of the house, papers and letters;
3) freedom and inviolability of the property;
4) the freedom of crafts and occupations;
5) the freedom of worship;
6) the freedom of speech comprising also freedom of teaching and the freedom of a press;
7) the freedom of assemblies and companies;
8) the right to applications . The rights comprising this group, B. N. Tchitcherin conditionally divided into two subgroups:
1) the rights of the person or the rights of personal freedom — providing the person in his individual actions;
2) the rights of public freedom — that provide the person in his dialogue with other people. To number of the rights of the first category there referred the inviolability of the peon and the dwelling, the secret of correspondence, freedom of trades and freedom of movement and to the number of the rights of the second category — there referred the freedom of worship, the freedom of thought and speech, the freedom of press, the freedom of the unions and assemblies.
The Russian pre-revolutionary lawyer, the well-known sociologist of the right B. A. Kistjakovskiy, classifying the rights depending on the relation of the person to the state, allocated the special group of the rights («the freedom of the person from the state «) to which he referred inviolability of the person, dwellings, letters, the freedom of movement, the freedom of worship, the freedom of speech, press, assemblies, unions .
The French lawyer A. Esmen has divided all freedoms into two groups: a) the material b) moral rights and interests. To the first group he referred personal freedom in the narrow sense (i. e. personal safety), the personal property, inviolability of dwelling; to the second he referred — the freedom of worship and creeds .
By the beginning of the XX century to the contents of the concept of personal freedom as it was developed in literature and in the legal practice of advanced in this respect countries, there were brought two groups of the rights. The first group contained all kinds of the personal freedom, concerning the so-called «material interests of the person», including: a) the personal freedom in the narrow sense of the word, i. е. the freedom from any searches and arrests; b) the freedom of movement without permission of authorities within the limits of territory of the certain state, and outside of it; c) the freedom of citizenship (citizenship), including the right to refuse from it; d) the right to private property; e) the freedom of commerce, labour and industry. The second group was formed with those kinds of freedom which concerned moral (spiritually-intellectual) interests of the person, namely: a) the freedom of worship; b) freedom of assembly; c) freedom of speech and press; d) the freedom of unions and associations; e) the freedom of training; f) the secret of the post correspondence. In the United States of America besides the concept of personal freedom contained, as a rule, the right to carry weapons stipulated by the Second amendment to the Constitution of 1787
It is necessary to mean, that even in conditions of liberal ideas non of the above — mentioned kinds of freedom was recognized absolute and limited. The freedom of training, for example, was naturally limited by the laws about compulsory education which the state demanded from each citizen starting out life, to have the certain minimum of knowledge; the freedom of commerce was limited not only by the system of taxes and collections, but also by the rigid control over conscientiousness of using it (measures against falsification of products, control over sale of poisonous and strong substances, etc.); Even the freedom of worship was traditionally exposed to some restriction in the sense of interdiction to make criminal acts under covering of carrying out religious cults or to refuse execution of the constitutional duties. There was admitted certainly necessary that restrictions should be imposed on the ground of the law and each citizen should have an opportunity to struggle lawfully (judicial or administrative way) for change of these limits in the direction desirable for him.
Thus the majority of researchers were convinced, that guarantees of the civil freedom substantially lay in the plane of the political freedom. In this connection it is presented quite natural, that struggle for the personal freedom in the majority of the countries of the world on the border of ХIХ-ХХ centuries was carried out in parallel with struggle for democracy and political rights. The vivid example of political-legal views of that epoch is the appeal (program)" the Union of October 17th", promulgated on the wave of revolutionary movement in Russia of 1905−1906. :
«In the politically free state there should dominate the civil freedom, creating the unique reliable basis for the all-around development of both spiritual forces of people, and the natural productivity of the country. The manifest of October 17th puts on the first place the talent of firm bases of civil freedom. The development and strengthening of these beginnings in the legislation and the rights makes one of the most important tasks of the Union.
It contains first of all: the freedom of creeds, the freedom of speech, oral and printed, the freedom of assembly and unions. It also contains maintenance of the freedom of movement, choice of residence and occupation, maintenance of the freedom of labour, industry, trade, the freedom of purchase of property and its order. The civil freedom also assumes inviolability of the person, dwelling, correspondence, property of citizens. All these rights, given by the law have one natural limit in the rights of other citizens and in the rights of the society and the state. No one can be arrested, l subjected to any violence, search, deprivation of property and etc. without the decision of the respective judicial authority. Any person detained on any charge, should in precisely certain and shortest term, for example, in 24 hours in cities be presented to judicial authority or release. For protection of all these rights from encroachments, both on the part of private persons, and on the part of officials, they should be put under protection of criminal laws, thus there should be established the judicial responsibility of officials irrespective their position «.
Unfortunately, the above-proclaimed purposes have not been still fully reached both in Russia, in other CIS countries. Though, objectivity it is necessary to recognize, that the domestic political and legal history gives the occasion for pride of the contribution to development of the freedom of the person. We mean, first of all, the freedom in social and economic sphere.
The social democratic and communist ideology brought to the focus on the economic basis of the freedom of the person, having deduced on the level of the state policy the well-known thesis that the poor person can never be free. The constitutions of the second generation (the so-called constitutions of the times of socialist revolutions) for the first time have fixed the economic freedom of the person, and also ample opportunities for its self-realization in social sphere; theyhave given the class shade to the freedom and have given it the guarantee in the form of the socialist state.
Speaking about the contribution of constitutions of the second generation to development of the freedom of the person, it is impossible not to mention the Political Constitution of the Mexican United States from January 31, 1917. It can sound paradoxically, but exactly the Mexican constitution was the first to reproduce the basic postulates of socialism, such as the international solidarity, social justice, continuous improvement of the economic, social and cultural level of people, active role of the state in all spheres of activity of the society, the opportunity of expropriation of private property, etc. This document, in the opinion of many researchers, has opened the new page in development of constitutionalism, having united in itself the North American liberal ideas with the European values of social democracy.
In the aspect of our research it is necessary to specify, that the Mexican constitution has been one of the first in the world to fix such social rights, as the right to education (Parts 6, 7 Article 3), freedom of teaching (Part 8 Article 3), freedom of regulation of birth rate (Part 2 Article 4), right to health care (Part 3 Article 4), right to dwelling (Part 4 Article 4). Besides there has been fixed the freedom of choice of trade and occupation (Article 5), freedom of petitions (Article 8), freedom of movement and choice of residence (Article 11), as well as the right to carrying of the weapon (Article 10). It is necessary to note, that the Mexican constitution suits the problem of maintenance of the freedom of the person multidimensional and regulates the corresponding spheres of public relations as much as possible in details. The vivid example can serve the following position of Article 5 of the given document: «The state cannot admit performance of contracts, pacts and agreements having the purpose restriction, loss or irrevocable refusal of the freedom of the person, connected with work, training or religious vow … there should not be allowed any agreements according to which the person agrees to announcement outside of the law or exile or refuses for a while or for ever from occupation the certain trade, industrial or trading activity» .
Exactly in ten months after adoption of the Mexican constitution there took place the socialist revolution in Russia, which marked transition of the society to qualitatively another social and economic structure and, accordingly, to the new understanding at the freedom of the person.
Thus, it is necessary to specify, that despite radical requirements «to refuse the old world», the constitutions adopted at the beginning of XX century, on the wave of the social revolutions which captured the whole world, they substantially followed the traditions of bourgeois-democratic constitutionalism. So, the first constitutional law of generalizing character in Russia there became the developed by V.I. Lenin the Declaration of the rights of the worker and the exploited d people, adopted by the III All-Russian Congress of Soviets in January, 1918 which became, in essence, the small Constitution of the Soviet state. In this document there was proclaimed as the primary goal — «the destruction of any exploitation of the person by the person, full elimination of division of the society into classes, ruthless suppression of exploiters, establishment of the socialist organization of the society» . For this purpose there was abolished the private property on the land, natural resources (woods, bowels, waters), and the agricultural enterprises were proclaimed national property, there was proved the Soviet law about the working control, there was made nationalization of banks. Despite the full contrast of the contents, the form of this document has been copied from the Declaration of rights of the person and the citizen. Thus, naturally, the name of the declaration has been transformed in the spirit of class struggle.ПоказатьСвернуть