The scientific-practical Law Journal “Almanac of Law” Volume 11 (2020),
42-47 p.
DOI:10.33663/2524-017X-2020-11-7
Bobrovnik S. Doctrinal analysis of legal compromise and its role in human rights
Contradictions in society, the struggle between social groups and conflicts of public interests increase the importance and relevance of social compromise, capable of ensuring the stability and orderliness of human behavior, the formation of certain levels of organization of society, ensuring the systematic social institutions.
Given the significant increase in the importance of the state as a means of ensuring the coherence of social processes and law as a means of reflecting, securing, guaranteeing and restoring public interests, problems of researching legal compromise are actualized. The need for its doctrinal analysis is a legitimate requirement that arises in societies embarking on the path of building a democratic, social, rule of law.
Compromise (from the Latin Compromissum) is an agreement reached on the basis of mutual concessions. For the first time, the term "compromise" was introduced into scientific research by A. Comte, who believed that without reaching a compromise in society there was no opportunity for its development, since social relations, both in statics and dynamics, need coherence for their normal implementation. Such coherence, in other words consensus, is based on the principles of interaction of different types and levels, harmony of parts and the whole, and is aimed at securing the interests of participants in public relations.
Already in ancient philosophy, a foundation was laid for the study of compromise as one of the basic elements of achieving a public good and building an ideal society. Its representatives, exploring models of the ideal social order, addressed the problems of integration of society, the combination of its various elements, stability and efficiency of the functioning of the state, as well as the means of achieving social compromise. Ancient researchers have proposed a number of ideas that still have value today. It can be argued that ancient philosophers began to study the political structure of the state, its regimes of government and their means of securing public consensus, including the category of "compromise". However, they did not yet specify definitions of compromise, consensus, integration, consent, but only considered them within the general categories of “integrity” and “unity”.
Representatives of the Middle Ages and the Renaissance continued to study the compromise as one of the foundations of the functioning of society, enriched the concepts of Plato and Aristotle came up with their original ideas. However, in the spirit of the ideas of ancient philosophers, they viewed compromise not as an independent category, but as an element of a means of forming a state and society - either coercion or violent compromise (N. Machiavelli), or Christian dogmas (F. Aquinas). They failed to address the issue of compromise as one of the defining principles of establishing a democratic regime in society.
The ideas of modern-day Enlighteners to designate the category of "compromise" have become the methodological basis for modern-day researchers and present in the study of the problem of public consent. Modern problems of research of the category of "compromise" are based on the continuity of the theories and ideas of precursors-thinkers of different times and peoples, from the time of antiquity to the present. In its turn, the current state of the study of the category of "compromise", including as a basis for the functioning of a democratic rule of law, is characterized by ideas about the adequate definition of this category.
The essence of the compromise is formed on the basis of a combination of material (value-orientation and anthropological-communicative sphere of being subjects) and procedural (procedural-mode and regulatory sphere of being subjects) components and consists in reaching public agreement by non-violent methods that reduce or impede one subject to another.
Thus, a compromise is an instrument of public consent and a means of final resolution of the conflict, based on mutual concessions, which is of value and orientation and is the basis for the formation of a democratic regime in society.
The role of legal compromise in ensuring human rights lies in the possibility of legally securing means that guarantee a certain level of communication in the sphere of opportunities provided by society or the state to a person. Legal compromise is one of the defining principles of the functioning of a democratic regime, the basis of the legitimation of power, which is the subject of the consolidation and guarantee of human rights. It is an effective means of redressing legal conflicts in the field of human rights; legal compromise causes legal consequences for public relations entities, including by applying coercive means to entities that do not perform their duties or violate the rights of other entities. Finally, legal compromise is a prerequisite for any legal relationship in the field of human rights. It is the achievement of a legal compromise in the field of human rights that provides an opportunity to resolve emerging conflicts and determines the level of effectiveness of the state's activities in the specified field.
Keywords: law, legal compromise, human rights, society, state.
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