Concept and social security system
The Human Right to Social Security
The right to social security takes a special place among the socio-economic rights of man. In the theory of law, socio-economic rights and freedoms include the "individual's capabilities in the production and distribution of material goods, designed to ensure the satisfaction of economic and closely related spiritual needs and interests of man."
A large legal dictionary treats these rights as "the aggregate of constitutional human rights (or only citizens of a particular state), giving him the opportunity to qualify for receiving certain material goods from the state under certain conditions."
A. E. Kozlov distinguishes the following essential signs of social rights:
1) they are aimed at meeting the basic human needs necessary for a normal existence;
2) their volume does not depend on the quantity and quality of labor.
Summarizing the views of representatives of various branches of law on the nature of social rights, VA Ivanenko and VS Ivanenko proposed the following definition: "Social rights are recognized by society and the state and enshrined in legal acts of a set of rights and freedoms which every person must possess in order to ensure and protect his specific properties, interests and opportunities, which he needs for normal physiological, material and spiritual existence and development, for a socially worthy life and bschestvenno significant activity .
Thus, the purpose of social rights is to satisfy basic human needs. First of all, such economic rights as the right of private property, the right to business and other activities not prohibited by law, the right to work, etc., contribute to the achievement of this goal. The degree of their implementation depends to a large extent on the activity of the person himself. But if a person has lost the source of livelihood in the form of income from work because of social risk, the state grants him the right to social security.
The question of the place of social rights in the human rights system remains one of the most controversial. As noted in the literature, the very nature of these rights "directly relates their implementation to the fulfillment by the state of certain obligations in the field of social policy". And when they are used, such evaluation concepts as "decent life", "fair and favorable working conditions", "satisfactory existence" are used. and so on
It is widely believed that social rights can not at all be guaranteed as subjective rights, since a market economy generates inequality between people. Unlike civil and political rights, social rights are viewed not as subjective human rights, but as state obligations, the fulfillment of which depends on the level of economic development. In fact, they represent targets that are specified in national legislation, taking into account the country's financial capabilities.
In this regard, it is worth recalling that as early as the beginning of the 20th century, United States lawyers PI Novgorodtsev and IA Pokrovsky raised the problem of legal consolidation of the right to exist. In his works, Novgorodtsev did not oppose the human rights of the first and second generations, but, on the contrary, emphasized that in the absence of material means, personal freedom will remain only an "empty sound, unattainable blessing" attached to the individual "legally and virtually taken away" .
Today this opinion has become universally recognized. As R. Aron notes, the real source of lack of freedom and inequality is the social context . In order for individuals to participate in public life, they must have the means, the availability of which does not always depend on their personal efforts. Therefore, the state, striving for progress and development, is obliged to create conditions for engaging socially weak segments of the population (disabled, large, unemployed, etc.) in society by providing them with a dignified existence, including through pensions, benefits and other social payments, free medical and social services.
The fact that individual human needs are diverse and subjective does not mean that they must remain outside the legal regulation. First, in society in a concrete historical period there are certain ideas about the norm and limits of consumption. Secondly, in addition to fixing the general principles, it is necessary to adopt legislation on provision in case of sickness, disability, old age, and the creation of a public system of charity for disabled and old people.
Studying the issues of civil liability for the harm caused, IA Pokrovsky stressed that they can not be properly resolved until the human right to exist is recognized. The legal aspect of this right is inextricable relationship with the duty of the state to provide the minimum necessary. "This expense should be considered mandatory - in the same way as spending on the maintenance of the army, government officials or as a payment of interest on government debt."
The current stage of the development of the concept of socio-economic human rights began after the Second World War. In 1941, President Franklin D. Roosevelt in his speech called the four necessary freedoms that must be provided by a democratic society: freedom of speech; freedom of worship; freedom from fear; freedom from want.
The Universal Declaration of Human Rights of 1948 consolidated the universally recognized set of human rights. The most important law in Art. 10 of the Declaration proclaimed the right to life.
In the International Pact of the PLO on Economic, Social and Cultural Rights of 1966, which entered into force in the USSR on January 3, 1976, the customs in the field of social security are discussed in art. 9-12. In accordance with Art. 11 The Covenant should ensure the right of every person to an adequate standard of living for himself and his family, including adequate food, clothing and housing.
According to Art. 10 of the European Charter on Fundamental Social Rights of Workers signed in Strasbourg in 1989, working citizens have the right to adequate social protection and adequate amounts of social security benefits in the event of loss of earnings due to social risk, and unemployed citizens who do not have the means existence, have the right to social assistance in the amount of the subsistence minimum.
The 1996 European Social Charter (Revised) proclaims the right to social security (Article 12), social and medical assistance (Article 13), social services (Article 14), the right of persons with disabilities to social integration and participation in the life of society (Article 15), etc. In June 2009 the United States ratified the European Social Charter. However, these articles that establish social security rights have not been included in the number of ratified.
It should be emphasized that in the mass consciousness social rights are assessed as more significant than civil and political ones.
According to the US Constitution (Article 2), human rights and freedoms are the highest value, and their recognition, observance and protection is the duty of the state.
The basic natural and inalienable human right is the right to life. This right is three-dimensional in content and has two aspects - natural (natural) and social. The natural aspect implies the prohibition of war and the death penalty. The social aspect is to provide each person and his family with a sufficient material level for a decent life.
That is why the social and economic aspects of the state's activities should not be contrasted. The idea of social orientation of the state was embodied in the concept of "social state" and is reflected in international treaties. In particular, the ILO Convention No. 117 of 1962 "On the main goals and norms of social policy" it directs states to take all possible measures to achieve such a standard of living, including food, clothing, housing, medical care and social security, as well as the education that is necessary to maintain the health and well-being of independent producers, employees and their families. >
Attempts to build a barrier between the concepts of legal and social States do not make sense, because the recognition and provision of social rights and guarantees for their implementation are of fundamental importance for social development and well-being.Ideas of social justice, the priority of human and citizen's rights and freedoms, of the social state were directly reflected in the US Constitution.
The right to social security is disclosed in a number of articles of the US Constitution. Article 39 of the US Constitution guarantees everyone social security by age, in case of illness, disability, loss of breadwinner, for the upbringing of children and in other cases established by law; Art. 37 establishes the right to protection against unemployment; Art. 38 establishes that motherhood and childhood, the family are protected by the state; Art. 40 proclaims the right of everyone to housing and special care for the poor, to whom it is provided free of charge or for affordable payment from state and other housing funds in accordance with established standards.
At the same time it is quite obvious that the listed rights have a wide content, in which social security itself is only one of the facets.
The right to social security is inalienable and belongs to everyone from birth. The legal aspect of this right is expressed in the constitutional obligation of the state to provide a person with means of subsistence in the amount necessary for a decent life. It is this constitutional legal interpretation that is enshrined in the decisions of the US Constitutional Court. Thus, in the ruling of the Constitutional Court of the United States of February 15, 2005, No. 17-0 recognizes that, based on the provisions of the US Constitution and international legal acts, the legislator should "determine the minimum old-age pension that provides at least such a standard of living , under which ... the very possibility of a dignified life of a citizen as a pensioner, the exercise by him of the other individual rights and freedoms proclaimed by the Constitution of the United States, and thus his human dignity, would not be questioned. "
The contents of international acts on human rights, the US Constitution and sectoral legislation make it possible to formulate a definition of the right to social security. The right to social security is an internationally recognized and guaranteed by the state ability to satisfy physiological, social and spiritual needs in the amount necessary for a decent life, when as a result the onset of social risk or other socially significant circumstances, he lost his income from work or family.
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