The existence in the modern society of law in the broad sense - as an institution of universal regulation and streamlining, assumes as its foundation the affirmation of both human and citizen rights - law in the narrow sense. A distinctive feature of any developed society is the establishment of the necessary balance between the regulatory and protective function of law, which is expressed outwardly in the form of maintaining order based not on the fear of punishment, but on affirming the real possibility of the legitimate, that is, “measured right”, protection of the violated right.
Legal awareness and protection of rights
It should be noted that the degree of development of certain forms of protection of law in a particular society and state is directly related to the existing rule of law. By their roots, they grow out of those legal traditions that have determined a certain predisposition of the legal consciousness of such a society, which in many respects determines the degree of development of legal awareness of each of its members.
Basically, in the modern view, there are two main types of legal consciousness, the combination of which determines the effectiveness and priority of the applied forms and methods of protecting rights.
Positivism
The first type of legal consciousness is positivism, which is based, in particular, on the assumption that the legal system of the state, as a set of legal norms that actually exist within its borders, is holistic, self-sufficient and only applicable in the field of activity where such application is required. In such an approach, the role of the state is paramount, which assumes all the functions of creating legal norms and their application, rejecting any departure from the legal method and boundaries of regulation. With this type of legal awareness prevailing, the administrative and judicial protection of rights is of paramount importance, since the most effective protection against unlawful actions can be obtained, first of all, from the state, in the person of its bodies and officials, vested with authority and with a monopoly right to use force.
Natural law
Another type is based on the primacy of natural law, that is, the rule of law, in which everything is subject to some moral and ethical foundation. Here, the principles formulated by the legal mind in the framework of the gradual evolution and development of primary moral and ethical ideas about the value of rights and the extent of their protection come to the fore. To a greater extent than in other systems, natural law is protected by the awareness, moral and ethical culture of each member of society, not fear of punishment. The state in such a legal system serves as a pillar of maintaining the rule of law, does not intervene and does not affect the very natural basis. In this case, constitutional and judicial protection act as priority forms of protection of rights and interests. At the same time, constitutional defense is manifested in the approval and fixing of those primary principles that form the moral and ethical basis of the rule of law, while the judicial one is manifested in eliminating their violations, through, inter alia, the legitimate use of violence.
The concept of the form of protection of law
As follows from the foregoing, by “form” it is necessary to understand the external expression in which the alleged internal properties are manifested. With regard to the form of protection of law, one can give it the following definition, taking into account some balanced approach, taking into account both of the above legal systems. So, any protection of the right involves its restoration to a state that existed before the violation, or, for impossibility, to a state that is fairly similar. Equity is the principle that determines the proportionality of compensation, while maintaining the overall balance of rights available before the violation. Accordingly, a form of protection of the right is a combination of means and methods, combined into some official procedure or procedure recognized by the state and society by which such restoration takes place.
Directly such forms can be, to a greater or lesser degree of detail, all available means available and permitted by law. For example, permissible methods of protecting civil rights in the Russian Federation are provided for by Art. 12 of the Civil Code.
As a theoretical and practical generalization, we take the initial division into three main forms:
- constitutional;
- administrative;
- judicial.
Administrative Protection
Administrative protection of rights is manifested, first of all, in protection from criminal attacks on the basic and inalienable values of a person and citizen - life, health, personal freedom, as well as in the protection of other rights provided for by the Constitution and laws. The state, through the established structure of law enforcement agencies, has a monopoly on the use of force to suppress and prevent crime, as well as the right to investigate crimes and bring before the court the question of bringing perpetrators to justice. Of course, administrative protection is of great importance in any approach. In the same place where in human nature itself there is an aversion to crime and its censure by all, without exception, including law enforcement officers, the system of protection of rights acquires its natural appearance.
Constitutional protection of rights
This form of protection presupposes the existence of the authority of a constitutional legal norm, as an instrument for consolidating the natural legal norm. The basis and at the same time a consequence of such authority is the voluntary adherence to such a norm, due to the fact that the principle enshrined in it is itself valid and recognized in relation to any situation and any person. This form is universal in nature and depth, in this form the protection of constitutional rights does not require significant forces and means to ensure it, but it is the most effective. However, in order not to be an ideal construction devoid of practical significance, some internal transition in the traditional idea of the rule of law within society itself is necessary to implement it in due importance.
The constitutional norm, in another case, is only a declarative basis for the possibility, to one degree or another, of involving other forms of jurisdictional protection - administrative, judicial, as well as non-jurisdictional forms, for example, the right to self-defense.
Judicial Protection
Inextricably linked to constitutional judicial protection of rights. Despite the fact that constitutional norms are direct action norms, often their real content is impossible without going to court. The judicial form of protection of rights is crucial for any system of the existing law and order.
A somewhat special position in the legal systems of “common law” with the prevailing natural-legal order is the judge. An English judge is not only a law enforcer, he is also the creator of law, especially in new, developing sectors and spheres of society. The judge determines the tendency of the legal order, which is then adopted by both the executive bodies and parliament. The English legal system is a “grown tree” of judicial precedents, which is largely based on natural rights and principles.
At the same time, the advantage of continental positive law systems is their integrity, their adequacy to their time and the logical structure available for understanding and enforcement.
Other methods and forms of protection of rights
The right to self-defense within the limits of necessary defense is generally accepted and inalienable in any law and order. This is another way of protecting rights, also indicated in article 12 of the Civil Code, and designated as a circumstance excluding the crime of an act, in article 37 of the Criminal Code of the Russian Federation.
It should be noted that in civil law the independent settlement of contractual disputes by the parties to the contract is widely used, as well as the voluntary compensation of harm from tort obligations, is another form of protection of rights.
Means of protecting rights are means of the so-called operational impact in cases of violation of contractual obligations. These include suspension, refusal to fulfill the obligations assumed under the contract, refusal to accept improper performance (Articles 328, 463, 715 of the Civil Code), as well as the imposition of associated costs on the party that violated their obligations (Article 397 of the Civil Code).
International legal institutions for the protection of the rights of citizens
The protection of human and civil rights is the central element of many international organizations created as a result of the international legal activities of the participating countries. The activities of the UN have one of its main goals to promote and develop respect for human rights and fundamental freedoms for all, without distinction of race, gender, language and religion.
The European Court of Human Rights is of paramount importance as an international legal institution that provides its methods and forms of protecting the rights of citizens. Created by the Council of Europe, an organization of which 47 European states are members, the court examines and provides for the protection of human rights and fundamental freedoms, as provided for in the Convention for the Protection of Human Rights and Fundamental Freedoms.
The rule of law created by the precedents of the European Court of Human Rights is unique and completely unparalleled, since the court combines all the best practices and practices of creating legal precedents and applying positive law - the norms of the Convention.
Conclusion
Summing up, it should be noted that the choice of the form of protection of the right, of course, is determined by its effectiveness and accessibility in the current situation. The ability to navigate correctly and determine the optimal method of action in the case when the right is violated is in many respects crucial for its maximum protection.