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This paper raises some issues regarding the institution of restrictions as a public-law category. The state of scientific study of the problem, its origins, evolution and modern embodiment is analyzed. The criteria and conditions for the restriction of human and citizen’s rights and freedoms in national legislation are established. Based on the results of the study, a conclusion was made on the role of law as the main form of fixing restrictions in the public sphere.
Restriction, Institution of Restrictions, Restriction of State Power, Restriction of Human Rights, Law
In legal doctrine, the problem of the concept, essence, and content of the institution of restrictions, due to the complexity and multidimensionality of the latter, is debatable. The subject of numerous studies is the socio-legal and political and legal restrictions in the exercise of state power (governance), the essence and content of restrictions in the general legal terms, restrictions on the rights and freedoms of the individual (person, citizen), concepts, notion and system of restricting state power. Restrictions are subjected to research from various positions and points of view: the needs of a particular kind of social relations and the appropriate legal means of influencing them; as methods and ways of legal regulation; and as the principles and functions of law. This is no accident, since, as E.A. Sedov rightly notes, “the search for the optimal balance between the provision of the necessary freedom to every member of society and the reasonable restrictions of this freedom for maintaining public order have been and are one of the most complex, sensitive and urgent social problems for all human communities” . Indeed, the formation of civil society and the rule of law is closely intertwined with the restrictions. On the one hand, a rather unilateral fascination of some legal scientists in recent decades with the ideas of inviolability of rights and freedoms in the legal status of the individual has inevitably led to the fact that the rights of some members of society have come into conflict with the rights of others, with common and public interest. This gave rise to the problem of finding a balance in the system of rights, freedoms, duties and restrictions of the legal status of the individual in order to maintain stability in the country, ensure the conditions for the existence of each individual and the progressive development of society and the state. On the other hand, the fundamental signs of the rule of law are also related to restrictions, such as the partition of powers, the restriction of power to law and human rights, otherwise state power risks becoming a spontaneous uncontrolled phenomenon, devoid of its main purpose – serving the interests of the individual and society. Therefore, it is fair to recognize the opinion of the French law scholar J. Selle about the nature of power: “The foundations of any power are overarching and totalitarian; all power tends to be absolute inside and dominant outside the system” . It is necessary to pay attention to the dual (and even contradictory) nature of the restriction of state power: on the one hand, it is an absolute blessing, since it ensures the implementation and protection of human rights and freedoms; on the other, the state must be strong to ensure protection of civil rights by the potential possibility of using means of state coercion. Thus, according to the German law scholar R. Iering, “the weakness of power is the mortal sin of the state, which is less forgiven to leaders than cruelty and arbitrariness” . Thus, restrictions are necessary, both in terms of deterring abuse of rights and misconduct of individual citizens for the sake of general (public) interest, and the arbitrariness of the state as a whole and state bodies (officials) in particular.
The results of the study allow us to conclude as follows: the institution of public law restrictions has a long history; its conceptual foundations originated in ancient times, have made a long way in their formation and development and are now consolidated in international legal instruments and constitutional acts of various states. As the final of the analysis of the problem stated in the paper’s title is an indisputable fact that the right (in its natural and legal manifestations) as the official civilized, universal and most effective regulator of social relations, the most important social, cultural and moral value, the measure of freedom, and the responsibility of the individual must be the main form of setting forth restrictions for both state power and the rights and freedoms of the human and citizen.
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