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Реферат The necessity of further formation of the constitutional courts and ways of perfection of legal proceeding





es and is the psychic condition, but not the physical fact. The barrier of the freedom as the physical fact means: Borders of activity of the individual are directly proportional to the value of physical space and number of physical subjects, which he can use [36]. For instance, the prisoner is not free since his space and facilities are limited. But freedom of the rest of the individuals increases at imprisonment of the criminal. They use the physical space and subjects, inaccessible for the prisoner. Freedom is the constant value, which can be only redistributed, but not enlarged or reduced. Slavery of one person enlarges the freedom of the other: The universal longing to the personal freedom is the game with zero result [37]. It s no use speaking about growing of the general amount of the freedom according to the social dynamics. The problem is in redistribution of the freedom..Steyner Defines the freedom as the physical fact, which does not depend on desires: Action is reduced to mastering certain physical space and possessing certain material subject [38]. If the subject acts freely, physical elements of action belong only to him, but not to the other subjects. The subject is the owner and manager of the given physical space and the subjects. If to exclude action of the laws of physicists, the subject determines changes of subjects in the given space. He controls the given space and subjects if he can exclude the physical possibility of their seizure and use by other subjects. concept of G. Steyner reflects the practice of the primary individual (group) seizure of land and the further colonization of the territories. But the physicalist concept of the freedom does not take into account the influence of rights and laws on the freedom. If to agree with the idea of ??the redistribution of the freedom, the installed right is limited by the laws, which are not avoided by the physical barriers of the freedom. interference of other individuals influences the freedom since changes attractiveness of the certain actions. For example, F. Hayek considers the enforcement as the barrier of the freedom. According to F. Hayek, the term freedom describes the relations of people, the only infringement of which is the mutual enforcement. According to F. Hayek whether the person is free or not depends on the range of the choice, but on the fact, whether he can hope to form his own mode of behavior in accordance with his own intentions, or whether someone else has the possibility to control circumstances in such way that the person will be compelled with the will to act on the other person, but not on his own will. The freedom provides that the individual has the certain guaranteed private sphere and that there is the certain set of circumstances in its ambience, in which nobody can interfere [39]. In the opinion of the given author, enforcement (instead of right and laws) limits the freedom; the freedom is independence on arbitrariness of the other person. At observance of the laws as general abstract rules, installed irrespective of the way of using, the individuals do not comply with the will of the other person and therefore they are free. The enforcement is the threat of making harm the person; if the law worsens the life of the people, there is no enforcements, there is the freedom. our opinion the concept of R. Nozik is quite interesting from the point of view of legal comprehension of the freedom. It is based on theory of human rights, according to which fair (corresponding to the law) actions do not violate the freedom [40]. The main problem of the given concepts of the freedom is in its dependence on vague theory of human rights. Connection of the freedom with fairness deprives the notion of the freedom of the political contents: Nozik considers the notion of the freedom as the moral category, supposing that only illegal actions can violate it. R. Nozik ignores the situations, under which poverty compels people to violate morality. He rejects the presentation, according to which the poor can not be free. The main sign of non freedom is the violation of rights, instead of absence of the choice [41].. Miller has shown that ethics of the freedom does not deny its physical and social barriers. For instance, the freedom of a person does not decrease if there is the obstacle on his way though he can not go by the earlier determined way. The freedom is limited if barriers are created by other people. In this case a person is deprived of not only physical, but legal freedom of journey: The major problem is on whom responsibility will be allocated. The answer is reduced to determination of barriers of the freedom. In fact, the question is the problem, decision of which can not be ethically neutral [42]. described approaches fix the undecided problems of building of non ambiguous concept of the freedom. Understanding of the freedom as absences of obstacle and quali...


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