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Fundamentality and Universality of Human Rights as Legal Concepts

Student: Otarov Otar

Supervisor: Anita K. Soboleva

Faculty: Faculty of Law

Educational Programme: Legal History, Theory and Philosophy of Law (Master)

Year of Graduation: 2020

This research is devoted to a critical analysis of the concepts of fundamentality and universality of human rights. The purpose of the work is to classify human rights on the basis of formulated definitions of fundamentality and universality. As a result of the analysis of particular characteristics of human rights, it is proposed to define human rights as a set of subjective rights recognized for each person, established by normative acts and provided with judicial protection. In the process of reviewing the history of the development of the concepts of fundamental and universal human rights, problematic issues related to the definition of basic concepts and their relationship are identified. Based on modern theories of fundamentality and universality of rights proposed by L. Ferrajoli and G. Palombella, the author offers a functional definition of the fundamentality of human rights. In the view of the researcher, the fundamental human rights are such subjective rights recognized for all people and secured by judicial protection, the provisions about which are enshrined in the constitutional legislation, form the boundaries of legal discourse and determine the validity of other norms and acts of public authorities. The right to judicial protection is an unconditional fundamental human right. At the same time, the research emphasizes that a complete list of fundamental human rights cannot be compiled without reference to the constitutional legislation and law enforcement practices of individual countries. The analysis of various views on the universality of human rights has led to the conclusion that the universality of these rights is relative. It is proposed to consider the universality of human rights at three levels: ideas, concepts, and practices of their realization. As the author notes, the movement from ideas to practices is accompanied by an increase in the relativity of human rights.

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