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The theory of social rights
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Batyrova Ayjarkyn, Al-Farabi Kazakh National University, master student 1st cours, Faculty of Law Baimakhanova Dina Muratovna, Doctor of Law, professor of the Chair of State and Law Theory and history, Constitutional and Administrative Law, Faculty of Law, al-Farabi Kazakh National University E-mail: dina_405@mail.ru
The theory of social rights
Abstract: In this article questions of the theory of the social rights are considered. The social rights not only are adjusted by the law, but also and to provide system of mechanisms of protection and guarantees. According to the theory of the rights of the natural right I arose how the state can exist without it. However real guarantees of essential social protection of the population can exist, only if political system of society, first of all it is connected with association of public funding mechanisms for social measures and actions.
Keywords: social rights, Constitution, constitutional, social rights.
Social rights as guaranteed by the Basic Law category of rights can, we believe, be considered in the narrow and broad concepts. Isolation of different points of view on the concept and content of social rights associated with the identification of research in the previous section of narrow and broad interpretation of the category of “social sphere", is based on the particularities of the identified social rights turn, in fact, the essence of the phenomenon under study law.
A social right has constitutional status and is mainly determined by the general legal status of a person in the Republic of Kazakhstan. “Constitutional rights and freedoms are fundamental not only in form, as enshrined in the Basic Law, but, most importantly, and content. Form, i. e. securing the rights and freedoms in the Constitution of the Republic of Kazakhstan, is only a direct consequence of the exceptional value of their content. The Basic Law enshrined the rights and freedoms which are vital to the greatest extent and social significance for the individual and for society as a whole and the state” [1, 269-270].
Social rights are not only regulated by law, but also to provide a system of guarantees and protection mechanisms. Human and civil rights under paragraphs 1 and 3 of
Article 39 of the Constitution may be restricted by law and only to the extent that this is necessary in order to protect the constitutional order, public order, human rights and freedoms, health and morals. Is not permitted in any form or restriction of the rights and freedoms of citizens for political reasons. Thus, it is forbidden to limit constitutional rights, freedoms of man and citizen, for other reasons, other than those specified in the Basic Law. In this regard, let us quote Z. Zh. Kenzhaliev, V. A. Kim that the system ofhuman rights and freedoms in the Constitution of 1995 is given in accordance with the Universal Declaration on the species, the content, and the mechanism of their protection. This means that the Constitution enshrines the rights and freedoms of the completeness with which they are implemented in other advanced democratic countries, the rights of freedom are considered as characteristic of man as natural and not donated by the state, that they should enj oy all the people on the basis of equality, that they can’t be disposed of, and limitations must be provided only by the law [2, 16-17].
Our analysis of the research on the constitutional social rights allows us to state some of their basic characteristics, included almost all researchers in the
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author’s definition of constitutional social rights is: consolidation of their composition in the Basic Law of the country; definition they are not as abstract and subjective requirements facing the state; relationship of social rights with decent (enough) the standard of living for people.
So, in the thesis, N. D. Gerashchenko states: “... the constitutional social rights — is enshrined in the Constitution of the Russian Federation the basic rights granted to each person the opportunity to qualify for the state of certain material benefits and provide him a decent standard of living and social protection” [3, 90].
In this paper, D. S. Shelestova summarized: “Social rights — a right that enable a person incapable of self, for objective reasons (disability, large families, all special public authority (judges, investigators, military), to provide for their needs in a particular sphere of life, qualify for assistance society in the face of state bodies and public associations” [4, 119].
E. V. Aristo believes it clarified the concept of “constitutional social rights of man and citizen”, which refers to guaranteed by the state, to meet the vital needs of man, his dignity and the free development of life. They relate to the maintenance and consolidation of regulatory social life of the individual, determine the position of a person in employment and living conditions, employment, welfare, social security, in order to create the conditions under which people can be free from fear and want. Consider the group of constitutional rights corresponding obligation of States to implement certain organizational and legal measures entailing a redistribution ofpart of its funds for the direct provision of material goods of certain categories of citizens [5, 6].
M. V. Shinto believes that the definition of “constitutional social rights” should be read as follows: constitutional social rights — is objectively mature, recognized by society and the State and enshrined in the Constitution of the Russian Federation set of rights and freedoms that should be enjoyed by everyone in order to ensure and protect their certain properties, interests and capabilities it needs to normal physiological, physical and spiritual existence and development for socio decent life and socially significant activity [6, 43-44].
The concept of social rights, in some sources — socio-economic rights, we believe, is not it considered in relation to the essence of the sphere of social relations in which they are translated into reality. From this position the content of social rights can be studied from the point of view of a narrow understanding of the concept of social rights, the interpretation of the legal definition of a
more or less wide and the widest possible understanding of social entitlements.
In our view, the list of social rights in the broadest sense, such rights as the right to social security, social protection, social insurance, maintenance, the right to freedom of labor, free choice of occupation and profession, safe working conditions, remuneration for work without any discrimination, the right to social protection against unemployment, the right to labor disputes, the right to rest, the right to housing, education, health. Believe is a fair opinion A. N. Sagindykov expressed in perspective on the nature and content ofthe constitutional right to health care that some social rights can serve as a legal basis for the development of other constitutional social rights [7, 54].
Overall constitutional and legal status of man and citizen has been systematically analyzed in the judgment of the Constitutional Council of the Republic of Kazakhstan dated December 1, 2003. - N 12 “On the official interpretation of Articles 10 and 12 of the Constitution of the Republic of Kazakhstan”, which sets out the following conclusions about the nature and content of the relevant constitutional provisions. For example, states that the rules on nationality included in section II “Man and the Citizen” of the Constitution and Article 10 of the combined, which structurally specified section begins. Significant is the fact that the constitutional and legal regulation of the rights and freedoms of man and citizen is preceded by the norms of citizenship, as it set a specific focus and content of constitutional rights, freedoms and duties of persons.
The Constitution differentiates the legal status of the individual, using the term “citizen of the Republic of Kazakhstan”, “every”, “all”, “foreigners” and “stateless person”. It should be understood that when the text of the Constitution refers to “every” and “all” that we have in mind as citizens of the Republic, as well as persons without citizenship of the Republic; when the “citizens of the Republic of Kazakhstan” — only those associated with citizenship of Kazakhstan. Thus, the Constitution establishes these subjects for different amounts of rights and freedoms, which they can use, and a different amount of duties to which they are assigned.
Constitutional and legal status of citizens of the Republic of Kazakhstan assumes possession of the whole complex of rights, freedoms and duties established by the Constitution, with the equality of the law. For foreigners the same and stateless persons specified otherwise limited, constitutional and legal status: they shall enjoy the rights and freedoms and bear the responsibilities that apply to citizens, except in cases provided by the Constitution,
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The theory of social rights
laws and international treaties (paragraphs 3 and 4 of Article 12, paragraph 1 of Article 14 of the Constitution).
Firstly, the Constitution ofthe same category of social rights that are realized in labor and derived relations, the same actors — workers, defined as belonging to everyone the right to freedom of labor, the right to social protection against unemployment, and associated with the listed with powers such rights as the right to a minimum wage, social security in the event of illness, disability, loss of breadwinner and other legal grounds are only citizens of the Republic. Following the logic of securing these rights in the Constitution, for example, a foreign citizen has the right to enter into an employment relationship, has the right to social protection against unemployment, but is not entitled to a guaranteed minimum wage, social security at the expense of the employer in case of illness. Naturally, the present situation is contrary to the spirit and the “spirit" of the Constitution, but may take place based on the literal interpretation of the provisions of the Basic Law.
Second, despite the affirmation of the right to social security only for citizens of Kazakhstan, in normative legal acts that establish legal support implementation of this constitutional right is regulated by the possibility of their implementation stateless persons, foreign citizens, oralmans. Thus, the right to social aid are citizens of the Republic of Kazakhstan, repatriates, persons with refugee status, foreigners and stateless persons who have residence permits and permanent residence in the Republic of Kazakhstan; temporary disability benefits paid by the employer to employees who, by definition, the Labour Code — any natural person; repatriates are included in the target population, which State shall take measures to promote employment; Most other social rights on pensions, social insurance is carried out by citizens and for-
eigners and stateless persons permanently residing in the territory ofthe Republic of Kazakhstan. Thus, we have the analysis of the current legislation revealed consolidation of social rights in accordance with the Constitution of the Republic of Kazakhstan, belonging exclusively to citizens, foreigners, stateless persons permanently residing in the Republic of Kazakhstan, and for repatriate’s refugees. We note the lack of a unified approach to the subjective social composition of holders of constitutional powers.
According to the theory of natural law rights arose long before the state can exist without it. However, the real guarantees of material social protection of the population can exist only if the political system of society, first of all it is related to consolidating the public financing mechanisms of social measures and activities. Thus, the effective features and tools of realization of social rights are only possible within the framework of state institutions, but as a legal category social rights are not related to the ability of the state to provide them, to ensure the right to decent, adequate standard of living belongs to everyone from birth, persons who are in a difficult life situation (loss of a breadwinner, work, illness, disability, and much more), is entitled to a free volume of guaranteed health care, labor is not less than the minimum, the man has a natural right to housing. Housing market conditions are often seen as an object of sale, good investment, and at the same time the country’s Basic Law guarantees the availability of housing for certain categories of persons: citizens in need of housing, it is available at an affordable price from the state housing funds.
Recognition of the social rights of the natural group requires secure their belongings in the Basic Law of the country, not just citizens.
References:
1. Constitutional law of the Republic of Kazakhstan./Editor. Ed. M. S. Narikbayev. - Almaty: Kazakh State Law University, 2001. - 656 p.
2. Kenzhaliyev Z. Zh., Kim V. A. Development of constitutional law of the Republic ofKazakhstan: Textbook. Part 3 -Almaty: Kazakh University, 2007. - 54 p.
3. Tereshchenko N. D. Constitutional social rights of the individual: the history and current status of the Russian Federation: Dis. cand. jurid. Sciences. - M.: MSU, 2004. - 194 p.
4. Shelestov D. S. The constitutional foundations of self-protection of social rights citizens of the Russian Federation: Dis. cand. jurid. Sciences. - M.: Moscow State Social University, 2004. - 237 p.
5. Aristov E. V. Social rights of man and citizen in the Russian Federation for Constitutional Studies: Author. dis. cand. jurid. Sciences. - M., 2005. - 24 p.
6. Shitov M. V. The right to social security in old age in the Russian Federation (the constitutional and legal problems): dis. cand. jurid. Sciences. - M., 2006. - 217 p.
7. Sagindykova A. N. Problems of realization of the constitutional right to health care in the Republic of Kazakhstan: dis. Doctor. jurid. Sciences. - Yekaterinburg: Ural State Law Academy, 1999. - 382 p.
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