Journal article Open Access

Fundamental Rights to Freedoms: A New Approach to the Study Based on Comparative Analysis of German and Ukrainian Legislation

O.I. Kosilova, Kh.K. Solodovnikova

The article deals with the legal analysis of the understanding of the phenomenon of “freedom” in its relation to human rights. Comparative analysis revealed a significant difference in approaches to defining the legal category of “freedom” in Ukraine and Germany. It has been found that in Germany, freedoms enjoy the legal status of fundamental rights and are enshrined in the form of rights to liberty, and in the Ukrainian legal doctrine rights and freedoms are mostly regarded as separate categories with different meaningful and essential content.  It is revealed that the characteristic feature of German legal doctrine is the interpretation of freedoms through the human rights, that is, freedoms enjoy the legal status of fundamental rights and are enshrined in the form of rights to liberty. Thus, according to German doctrine of law, freedom is first and foremost the responsibility of the individual, while the state provides the proper legal conditions for its implementation.

In Ukraine, fundamental rights to freedoms are mainly interpreted as specific areas of human activity within the limits established by the state and embodied in its laws. That is, freedom is understood in its positive meaning: it is granted by the state and defined by the state as a social good. Based on the analysis of the relevant norms on fundamental freedoms in the Constitution of Ukraine and the Civil Code, there are grounds to argue that freedoms relate mainly to so-called social fundamental rights.

The concept of freedom enshrined in the German Constitution requires a restriction on fundamental rights. Freedom of fundamental rights has two fundamental meanings: in principle, the rights of individuals to act at their own discretion, but on the other hand, are limited by a public authority that determines the limits of permitted actions. Human freedom is inviolable, and interference with human freedom is possible only on the basis of law. In German law, fundamental rights to liberties are understood as ways of the free development of the individual, as a sphere of personal responsibility protected by the state against interference. The relationship between the individual and the state in Germany is based on the fact that the German state must provide appropriate precautionary measures that impose restrictions on one person, thereby providing opportunities for the free implementation and development of others.

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