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БИЛЛЬ О ПРАВАХ (1689) КАК ИСТОЧНИК РЕГУЛИРОВАНИЯ ПРАВ ЧЕЛОВЕКА: СРАВНИТЕЛЬНО-ПРАВОВОЙ АСПЕКТ
Хванг Чжэ Хён,
Студент 2 курса Школы региональных и международных исследований Дальневосточного федерального университета,
Россия, г. Владивосток, 530hjh@naver. com
Иванов Александр Михайлович
канд. юрид. наук, доцент кафедры теории и истории государства и права Юридической школы Дальневосточного федерального университета,
г. Владивосток Am i_25.07@bk. ru
THE BILL OF RIGHTS (1689) AS A SOURCE FOR REGULATION OF HUMAN RIGHTS: COMPARATIVE LEGAL ASPECT
Hwang Jaehyun
2nd year student of the School of regional and international studies of the Far Eastern Federal University Russia, Vladivostok
Aleksandr M. Ivanov
Dr. of Law, Associate Professor
of the Chair of Theory & History of State and Law,
Law School of FEFU, Russia, Vladivostok
АННОТАЦИЯ
В данной статье исследуется история правового регулирования прав человека с целью выявления отправной точки развития исследуемого института. Английский Билль о правах является одним из наиболее важных документов в области права. Он играл заметную роль в ограничении власти монарха и установлении конституционной монархии в Британии, расширяя власть парламента. Билль о правах имеет целью гарантии прав граждан и обеспечения справедливого управления, став основным элементом современной теории права и правовой системы. Авторы исследуют влияние Билля о правах на теорию права и правовые системы на примере конституций своих стран, как Билль о правах защищал индивидуальные права и помогал сохранять баланс при осуществлении государственной власти, а также как его принципы отразились на современной теории права. Сравнительное исследование поможет читателю лучше понять то, насколько английский Билль о правах глубоко повлиял на современные правовые системы и теории, надеются авторы.
ABSTRACT
This article examines the history of legal regulation of Human Rights in order to identify the starting point of the development of the institution under the study, the features and similarities of its formation. The English Bill of Rights is one of the most important documents in the realm of law. It played a decisive role in limiting the power of the monarchy and establishing the constitutional monarchy in Britain by expanding the authority of Parliament. The Bill of Rights aims to guarantee citizens' rights and ensure administrative fairness, becoming a fundamental component of modern legal systems and theories. The authors examine the impact of the English Bill of Rights on contemporary legal theory and legal systems on example of 86
constitutions of Far Eastern countries, how the Bill of Rights protected individual rights and helped maintain a balanced exercise of state power, as well as how its principles have been reflected in modern legal theory. The comparative study will lead the reader to a better understanding of how the English Bill of Rights has deeply influenced today's legal systems and theories, hope the authors.
Ключевые слова: история права; права человека; сравнительное исследование; конституция; правовое регулирование.
Keywords: history of law; human rights; comparative study; constitution; legal regulation.
Introduction
It is often said that knowledge of the past helps to understand what awaits us in the future. There is probably some truth in this statement, but it still seems to us that more often everything happens just the opposite - not the past helps to understand the future, but the future holds the key to the secrets of the past.
The English Bill of Rights is one of the most important documents in the realm of law, and it was enacted in 1689. It played a decisive role in limiting the power of the monarchy and establishing the constitutional monarchy in Britain by expanding the authority of Parliament. The Bill of Rights aims to guarantee citizens' rights and ensure administrative fairness, becoming a fundamental component of modern legal systems and theories. The main purpose of the act was unequivocally to declare illegal various practices of James II. Among such practices proscribed were the royal prerogative of dispensing with the law in certain cases, the complete suspension of laws without the consent of Parliament, and the levying of taxes and the maintenance of a standing army in peacetime without specific parliamentary authorization. A number of clauses sought to eliminate royal interference in parliamentary matters, stressing that elections must be free and that members must have complete freedom of speech. Certain forms of interference in the course of justice were also proscribed. In this article, we will examine the impact of the 87
English Bill of Rights on contemporary legal theory and legal systems. We will also explore how the Bill of Rights protected individual rights and helped maintain a balanced exercise of state power, as well as how these principles have been reflected in modern legal theory. Lastly, we will acknowledge the limitations and issues of the Bill of Rights and investigate how they have been addressed in modern legal systems. Through all these discussions, we will gain a clear understanding of how the English Bill of Rights has deeply influenced today's legal systems and theories. It is not so much about the level or quality of life, but about the preservation of the civilizational space, about the way out of the impasse in which humanity finds itself, relying on the main principle of democracy - human rights, which in fact may seem to be a "colossus on clay feet". [3; 4; 6]
1. Background and contents of the Bill of Rights
The English Bill of Rights, enacted in 1689, brought significant changes to the political system in Britain. This document aimed to guarantee fundamental freedoms and rights for citizens. It played a crucial role in limiting the authority of the monarchy and strengthening the power of Parliament, establishing a constitutional monarchy known as the "Glorious Revolution". [3]
In the preface to her book, L. G. Maurer shared her most curious observation: "Both the Declaration of Rights and the Bill of Rights are well known, the latter is somewhat more than the first, but neither of them has been studied sufficiently"[3,23].
The Bill of Rights was a result of important political changes that occurred in late 17th-century England, with various historical events serving as its backdrop. It originated from the events of the "Glorious Revolution" in 1688, which led to the removal of King James II from the throne and the ascension of William III and Mary II to the British monarchy. The revolution aimed to restrict the power of the monarch and enhance the authority of Parliament, as part of efforts to address religious bias and political instability. Many people of that era were concerned about James II's attempts to impose Catholicism and expand royal power excessively. 88
Historians, however, often confuse them with each other, believe, for example, that the Bill of Rights is just another name for the Declaration of Rights. So, for example, V.G. Grafsky's textbook "The Universal History of State and Law" says the following about this document: "The Bill of Rights of February 13, 1689 became the long-term foundation of the English constitutional monarchy, consolidating once and for all the supremacy of parliament in the field of legislative and financial policy. In it, in 13 different articles, the rights and freedoms of subjects (citizens and parliamentarians) were also confirmed, which were especially often violated recently and therefore were subject to "restoration and confirmation". The bill (originally called the Declaration of Rights) began with these words: "Since the last King James II, with the assistance of various malicious advisers, judges and officials in his service, tried to overthrow and eradicate the Protestant faith and the laws and liberties of this kingdom..." 1. "It is characteristic," Grafsky further notes, "that the original name of the Bill was different and looked like this: "An act declaring the rights and freedoms underdata and establishing the order of succession to the crown." Based on this historical fact, in the literature, the Bill of Rights is sometimes called the Declaration of Rights of 1689". [3,34].
The Bill of Rights introduced a series of significant principles, including the right to assembly, protection against arrest or trial without proper accusation, and the guarantee of regular meetings of Parliament. These principles contributed to the fundamental concepts of fair governance and safeguarding citizens' rights, which are integral to modern legal systems. Understanding the political context of Britain at that time is crucial to comprehend the introduction of these concepts. The Bill of Rights emerged because of the "Glorious Revolution", which brought about changes to limit the monarch's prerogative power and strengthen the authority of Parliament. It played a vital role in formalizing and solidifying these changes.
Therefore, the Bill of Rights aimed to address these concerns and establish new rules for the political system in Britain, including the limitation of the monarch's power and the strengthening of Parliament's authority. Additionally, the document
explicitly stated various rights for citizens, including religious freedom, freedom of expression, property rights, and the right to a fair trial.
For these reasons, the Bill of Rights is an important document that reflects the social and political circumstances of that era. It embodies efforts to limit the power of the monarchy and expand the rights of citizens. It has played a significant role in the evolution of Britain's constitutional framework and the introduction of principles in modern legal systems. Therefore, the English Bill of Rights emerged as a response to the political and social conditions of its time, introducing a series of important principles that continue to be core components of contemporary law and legal theory. [8]
2. The impact of the Bill of Rights on modern law and legal theory
The principles introduced by the Bill of Rights had a profound impact on modern law and legal theory. It introduced the fundamental concept of law that aims to protect citizens' rights and ensure the fairness of government.
The Bill of Rights emphasized the need for a legal system that recognizes and guarantees the rights of citizens. It introduced core principles such as freedom of expression, property rights, and the right to a fair trial, which have been reflected in basic legal documents like international declarations of human rights. We can trace the establishing of rights and freedoms in the Universal Declaration of Human Rights (1948), as following: Everyone has the right to life, liberty and security of person. (Art. 3) All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. (Art.7) Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. (Art. 10) [5]. Likewise, similar norms we find in the Constitutions of Republic of Korea, in Chapter 2 and in the Constitution of Russian Federation, also in Chapter 2. (For example, Chapter 2: Human and Civil Rights and Freedoms. 90
Article 17: 1. In the Russian Federation human and civil rights and freedoms shall be recognized and guaranteed according to the universally recognized principles and norms of international law and this Constitution. 2. Basic human rights and freedoms shall be inalienable and shall be enjoyed by everyone from birth. 3. The exercise of human and civil rights and freedoms must not violate the rights and freedoms of other people. [1]
Chapter II. Rights and Duties of Citizens. Article12: (1) All citizens shall enjoy personal liberty. No person shall be arrested, detained, searched, seized or interrogated except as provided by Act. No person shall be punished, placed under preventive restrictions... [2] and so on)
The Bill of Rights emphasized the role of law in limiting the power of the state and maintaining a balance. This is evident in the limitation of monarchical authority and the strengthening of parliamentary power. These concepts support principles seen in modern constitutional monarchies or democratic systems, such as decentralization of power, checks and balances, and the dispersion of power.
The Bill of Rights demonstrated the flexibility and adaptability of the law. It was a response to the social and political circumstances of its time. It showcased the idea that the law should evolve and respond to changes in society and meet its demands and expectations. This principle is especially important in studying the development and evolution of the law within legal theory. [9]
The Bill of Rights has influenced modern law and legal theory in several ways. Here are some key examples:
1. Respect for Individual Rights and Liberties: The Bill of Rights explicitly recognized and protected basic rights and freedoms of individuals. These principles have been incorporated into various laws and constitutions [see the above examples], forming the fundamental principles of modern law that protect individual rights and liberties. In addition to the above examples we can mention, that the United States Constitution also incorporates many concepts influenced by the Bill of Rights.
2. Balance of State Power: The Bill of Rights limited the power of the monarchy and strengthened the authority of Parliament. It established important 91
principles for balancing state power. For instance, the principle of power distribution is included in the United States Constitution, heavily influenced by the Bill of Rights.
3. Flexibility and Potential for Change in the Law: The Bill of Rights, while not providing a perfect or comprehensive legal system, demonstrated the flexibility and potential for change in the law. It showcased the idea that the law should adapt and evolve over time and in response to societal changes and demands. This is particularly important in the ongoing interpretation and application of the law by scholars and judicial bodies.
4. Development of Human Rights: The Bill of Rights significantly contributed to the development of human rights law. The principles introduced in the Bill of Rights have been reflected in various human rights laws, playing a crucial role in guaranteeing and protecting the basic rights of individuals.
5. Evolution of Legal Interpretation and Application: The principles of the Bill of Rights have influenced the development of legal theory regarding the interpretation and application of the law. For example, the principle of "fairness of the law" means that legal provisions should be applied in a fair and impartial manner, and this principle is an important research topic in modern legal theory.
6. Changes in Legislation and Judiciary: The Bill of Rights brought about changes in legislation and the judiciary to ensure the protection and preservation of rights. For example, in the United States, principles like the "Equal Protection Clause" and the "Principle of Equal Footing" were introduced, emphasizing equality before the law, and have had an impact on the interpretation and application of the U.S. Constitution.
7. Advancement of Public Law: The Bill of Rights made significant contributions to public law, particularly constitutional law. The principles it presented, including the protection of citizens' basic rights and the limitation of state authority, have been reflected in various constitutional and public laws.
These examples demonstrate how the Bill of Rights influenced modern law and legal theory, shaping the principles and structures of law, and contributing to important aspects of today's law and society. Therefore, the Bill of Rights introduced 92
important principles and concepts to modern law and legal theory, becoming a fundamental component of contemporary legal systems. Its transformations and developments continue to shape significant parts of today's law and society. [10]
3. Limitations of Bill of Rights and the modern legal system
However, despite the Bill of Rights, it is important to recognize its limitations and shortcomings to fully understand its impact on the modern legal system.
The Bill of Rights was not a perfect legal document. For example, it did not grant equal rights to all individuals. Discrimination against women, minority groups, and specific religious communities still existed. These limitations have been addressed over time through the development of laws and societal changes. Modern law has made efforts to expand and protect rights in areas that the Bill of Rights inadequately addressed or did not address at all. [See Chapter 2 in the Constitutions of the Republic of Korea and of Russian Federation].
The principles outlined in the Bill of Rights were not always upheld or respected. These principles were sometimes ignored or violated due to political pressures or social changes. This has required a deeper understanding of the role of law and the limitations of power within legal theory.
The interpretation and application of the Bill of Rights varied greatly depending on the time and circumstances. This complexity in the interpretation and application of the law highlights the need for ongoing research and understanding by legal scholars and judicial bodies. While the Bill of Rights introduced significant principles and concepts to modern law, it did not provide a complete legal system. It offers important insights into the development and complexity of the law, as well as its limitations and challenges.
The Bill of Rights was a revolutionary concept, but it did not address all societal issues. Its limitations and constraints presented significant challenges for subsequent legal developments, and various countries have made efforts to address them. Examples of the limitations and issues of the Bill of Rights and how they have been addressed in modern law include: 93
1. Unequal Distribution of Rights: The Bill of Rights did not grant equal rights to all individuals. For example, women, minority groups, and specific religious communities were not fully included. This issue has been addressed in various countries through legislation. For instance, the United States granted women the right to vote through the 19th Amendment in 1920 and enacted civil rights legislation prohibiting racial discrimination through the civil rights movement.
2. Disregard or Violation of Principles: The principles outlined in the Bill of Rights were sometimes disregarded or violated due to political pressures or social changes. This was particularly evident during abuses of power or states of emergency. This issue has been addressed in various countries through constitutional provisions. For example, the United States Constitution incorporates a system of checks and balances to prevent the abuse of power, while Germany's Basic Law ensures the protection of fundamental rights even during a state of emergency.
3. Diversity of Interpretation and Application: The interpretation and application of the Bill of Rights varied greatly. This complexity in the interpretation and application of the law demonstrated the need for ongoing research and understanding by legal scholars and judicial bodies. For example, the United States Supreme Court has continuously developed the interpretation and application of the Constitution, which includes principles like those found in the Bill of Rights.
4. Rights of Women and Minorities: While the Bill of Rights introduced the concept of equality for all, it was not fully applied to certain groups, particularly women and minorities. This issue has been addressed in various countries. For instance, the United States granted women the right to vote through the 19th Amendment in 1920, and the Civil Rights Act of 1964 prohibits discrimination based on race, religion, and gender, extending legal protection to areas not explicitly addressed by the Bill of Rights.
5. Limitation of Monarchical Power and Citizens' Rights: While the Bill of Rights focused on limiting the power of the monarchy, it sometimes resulted in the strengthening of parliamentary power rather than the protection of citizens' rights. This issue has been addressed in countries like the United States through the adoption 94
of federalism and the dispersion of power. These principles are explicitly stated in the United States Constitution, aiming to prevent the concentration of power and protect citizens' rights. [11]
6. Insufficient Legal Safeguards: While the Bill of Rights guaranteed certain rights to citizens, it did not provide specific legal mechanisms for ensuring and protecting those rights. This led to the recognition of the need for legal safeguards in various countries. For example, Germany's Basic Law guarantees human rights and fundamental freedoms, addressing the areas where the Bill of Rights fell short. [12]
These issues highlight the impact of the Bill of Rights and the problems it gave rise to, requiring subsequent legal developments. Understanding the limitations and issues of the Bill of Rights sheds light on how modern law and legal theory have addressed and evolved in response to these challenges. [13]
Conclusion
The English Bill of Rights has played a significant role in understanding the impact on modern law and legal theory. This document emerged as a response to social and political changes, introducing important legal principles. Principles such as the protection of citizens' rights, balance of government powers, and the flexibility and adaptability of the law have become core components of modern law. These principles were not perfect or complete in themselves. The Bill of Rights did not grant equal rights to all individuals, and these principles were not always respected or upheld. Furthermore, the interpretation and application of the law varied greatly. These points highlight the recognition of the limitations and complexities of the law, contributing to the development of legal theory.
While the Bill of Rights played a crucial role in shaping the core principles and concepts of modern law, it did not provide complete solutions on its own. It demonstrates the ongoing development and evolution of the law to meet the demands and expectations of society. For these reasons, the Bill of Rights has become an important resource that offers deep insights and understanding of modern law and legal theory.
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