Human rights – value or norm?
Authors:   Arbitration Court of the Arkhangelsk Region, Vilova Marina G. , Permilovskiy Mikhail S. ,   Northern (Arctic) Federal University named after M.V. Lomonosov
Published: December 2024

The aim of the article is to compare different approaches to the interpretation of human rights, determined by the main types of legal understanding, – jusnaturalism and normativism. Both types of legal understanding are used in lawmaking and law enforcement activities, and have their own positive and negative features, which affect the legal status of the individual in the process of law enforcement. Jusnaturalism and normativism in the process of legal interpretation determine the expansive (axiological) and literal (normative) methods of interpretation. Based on extensive scientific material, a critical assessment of the axiological and formal legal approaches to legal interpretation and legal implementation is presented. Representatives of the first direction (G. Kelsen, K. Schmitt, J. Ely, J. Habermas) believe that the axiological approach replaces law and human rights with ethics and unjustifiably expands the discretion of the law enforcer. According to the second direction (G.V. Maltsev, R. Alexi, R. Pound, F. Hayek), denial of the interdisciplinarity of law reduces the social potential of human rights and the legitimacy of law. Examples of the positive application of the axiological method of interpreting the rules of law in the practice of constitutional justice are given (for the first time, the decision of the First Senate of the Federal Constitutional Court of Germany dated January 15, 1958, No. 1 BvR400/51 (the Lüth case) in the context of the development of the value of human rights is analyzed in a systematic and detailed manner). During the study, general and special scientific methods were used – formal legal, historical, comparative legal, hermeneutic. For greater clarity in the law enforcement process, values and norms are differentiated according to specific criteria: lawmaking, semantics, law enforcement, compliance, limitation, morality. Based on these criteria, values and norms complement each other and together allow, depending on the foundations of the state system, applying jusnaturalism in the interests of the effective implementation of human rights. It is inferred that human rights as values and as norms from a practical point of view are associated with risks of greater or lesser
distortion of legal implementation. The interpretation of human rights as values creates virtually unlimited discretion for the subject of interpretation. In cases where such interpretation is carried out administratively, this discretion in the absence of uniform approaches to the observance and implementation of human rights entails risks of arbitrariness. Consequently, this discretion should not belong to the system of authorities, but to one or more supreme bodies, and legal interpretation should be carried out according to a verifiable methodology (balance method, proportionality method, and proportionality criterion). Taking into account theoretical ideas about the positive integration of morality into law, it iss concluded that it is necessary to use not only legal and moral norms, but also other social norms in the process of law enforcement.