Affiliation:
1. National Academy of Legal Sciences of Ukraine
2. Department of Social Law Ivan Franko National University of Lviv
3. Department of Theory and Philosophy of Law Ivan Franko National University of Lviv
Abstract
The article presents possible forms of realisation of human freedom in its relations with the state, in particular, through legal regulation of the general permit type. The purpose of the article is to study this type of regulation based on the case law of the Supreme Court in Ukraine, as one of the most effective bodies in ensuring proper balance of interests of the individual and the state, which forms the methodological basis of human rights protection mechanism. The methodological approaches used are anthroposocial – to establish the essential basis of general regulatory regulation, which is associated with self-expression of the individual within the existing legal order, and axiological – to ensure the value nature of law. The general permissive basis of interaction between a person and the state has been identified, which is conditioned by the legislative consolidation of their relations under the scheme “everything that is not prohibited by law is allowed”. This general permitting basis was analysed on the basis of acts of the Supreme Court, which allowed to identify direct and indirect objectification of general permits as the basis of the studied type of regulation. It is proposed to link direct objectification with the fixation in the decisions of the Supreme Court of the full permit structure (“everything is possible except”) or its elements – the main limiters of the general permit (legal prohibitions and legal obligations). It is established that the function of the objectifier of general permission is performed by special legal permits, which are addressed to individuals and are reflected in the concepts of “subjective right” and “legitimate interest”. Indirect objectification is stated through special permits, which are reflected in the construction “allowed directly provided by law.” In this aspect, the issue of state discretion was further developed
Publisher
National Academy of Legal Sciences of Ukraine
Reference87 articles.
1. Assmann, А. (2020). Human rights and responsibilities. In search of a new social contract. Kyiv: Spirit and Literature.
2. The principle of respect for human dignity. (1998). Retrieved from https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-STD(1998)026-e.
3. Gnatenko, K.V., Yaroshenko, O.M., Anisimova, H.V., Shabanova, S.O., & Sliusar, A.M. (2020). Prohibition of discrimination as a principle of social security in the context of ensuring sustainable well-being. Rivista di Studi sulla Sostenibilita, 2, 173-187.
4. Petryshyn, O.V., & Hyliaka, O.S. (2021). Human rights in the digital age: Challenges, threats and prospects. Journal of the National Academy of Legal Sciences of Ukraine, 28(1), 15-23.
5. Hryshuk, O., Pylypyshyn, P., Romanynets, M., & Horetska, Kh. (2020). Formation of the philosophy of law of Ukraine and the USA under the Influence of individualist views: A consideration through history aspect. Journal of Advanced Research in Law and Economics, 11, 4(50), 1160-1168. doi: 10.14505//jarle.v11.4(50).11.