Что подразумевал автор под реальной основой всякой данной системы права: Тест по праву (10 класс) по теме: Тесты по праву

С2. прочитайте текст ⚡ и ответьте на вопросы.георгий валентинович плехановговоря

георгий валентинович плеханов

говоря вообще, всякий социальный союз стремится выработать такую систему права, которая бы наилучше удовлетворяла его , которая была бы наиболее полезна для него в данное время. то обстоятельство, что данная совокупность правовых учреждений полезна или вредна для общества, никоим образом не может зависеть от свойств какой бы то ни было или чьей бы то ни было «идеи»: оно зависит, как мы видели, от производства и от тех взаимных отношений между людьми, которые этими в этом смысле у права нет и не может быть идеальной основы, так как основа его всегда реальна. но реальная основа всякой данной системы права не исключает идеального отношения к ней со стороны членов данного общества. взятое в целом, общество только выигрывает от такого отношения к ней его членов. наоборот, в переходные его эпохи, когда существующая в обществе система права уже не удовлетворяет его , выросшим вследствие дальнейшего развития производительных сил, передовая часть населения может и должна идеализировать новую систему учреждений, более соответствующую «духу времени».

< …> происхождение права из «нужды» исключает «идеальную» основу права только в представлении тех людей, которые привыкли относить нужды к области грубой материи и противопоставлять эту область «чистому», чуждому всяких нужд «духу». в действительности «идеально» только то, что полезно людям, и всякое общество при выработке своих идеалов руководствуется только своими .

(плеханов г. в. к вопросу о развитии монистического взгляда на . — школьный практикум. 9-11 кл.)

вопросы:

1. как вы думаете, судя по прочитанному фрагменту, сторонником какой теории происхождения государства и права был г. в. плеханов?

2. что подразумевал автор под реальной основой всякой данной системы права?

3.как бы вы конкретизировали мысль автора о «происхождении права из «нужды» относительно современных реалий? ​

90000 Universal Declaration of Human Rights 90001 90002 90003 The Universal Declaration of Human Rights 90004 90005 The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December тисячі дев’ятсот сорок вісім (General Assembly resolution 217 A) as a common standard of achievements for all peoples and all nations.It sets out, for the first time, fundamental human rights to be universally protected and it has been translated into over 500 languages. 90006 90005 Download PDF 90006 90005 90006 90003 Preamble 90004 90005 Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, 90006 90005 Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, 90006 90005 Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, 90006 90005 Whereas it is essential to promote the development of friendly relations between nations, 90006 90005 Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, 90006 90005 Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, 90006 90005 Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, 90006 90005 Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.90006 90029 Article 1. 90030 90031 90005 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. 90006 90029 Article 2. 90030 90031 90005 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status .Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. 90006 90029 Article 3. 90030 90031 90005 Everyone has the right to life, liberty and security of person. 90006 90029 Article 4. 90030 90031 90005 No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.90006 90029 Article 5. 90030 90031 90005 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 90006 90029 Article 6. 90030 90031 90005 Everyone has the right to recognition everywhere as a person before the law. 90006 90029 Article 7. 90030 90031 90005 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.90006 90029 Article 8. 90030 90031 90005 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. 90006 90029 Article 9. 90030 90031 90005 No one shall be subjected to arbitrary arrest, detention or exile. 90006 90029 Article 10. 90030 90031 90005 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.90006 90029 Article 11. 90030 90031 90005 (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. 90030 (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.90006 90029 Article 12. 90030 90031 90005 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. 90006 90029 Article 13. 90030 90031 90005 (1) Everyone has the right to freedom of movement and residence within the borders of each state. 90030 (2) Everyone has the right to leave any country, including his own, and to return to his country.90006 90029 Article 14. 90030 90031 90005 (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. 90030 (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. 90006 90029 Article 15. 90030 90031 90005 (1) Everyone has the right to a nationality. 90030 (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.90006 90029 Article 16. 90030 90031 90005 (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. 90030 (2) Marriage shall be entered into only with the free and full consent of the intending spouses. 90030 (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.90006 90029 Article 17. 90030 90031 90005 (1) Everyone has the right to own property alone as well as in association with others. 90030 (2) No one shall be arbitrarily deprived of his property. 90006 90029 Article 18. 90030 90031 90005 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.90006 90029 Article 19. 90030 90031 90005 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. 90006 90029 Article 20. 90030 90031 90005 (1) Everyone has the right to freedom of peaceful assembly and association. 90030 (2) No one may be compelled to belong to an association. 90006 90029 Article 21. 90030 90031 90005 (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.90030 (2) Everyone has the right of equal access to public service in his country. 90030 (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. 90006 90029 Article 22. 90030 90031 90005 Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.90006 90029 Article 23. 90030 90031 90005 (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. 90030 (2) Everyone, without any discrimination, has the right to equal pay for equal work. 90030 (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.90030 (4) Everyone has the right to form and to join trade unions for the protection of his interests. 90006 90029 Article 24. 90030 90031 90005 Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. 90006 90029 Article 25. 90030 90031 90005 (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.90030 (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. 90006 90029 Article 26. 90030 90031 90005 (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.90030 (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. 90030 (3) Parents have a prior right to choose the kind of education that shall be given to their children. 90006 90029 Article 27. 90030 90031 90005 (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.90030 (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. 90006 90029 Article 28. 90030 90031 90005 Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. 90006 90029 Article 29. 90030 90031 90005 (1) Everyone has duties to the community in which alone the free and full development of his personality is possible.90030 (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 90030 (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. 90006 90029 Article 30. 90030 90031 90005 Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.90006 .90000 common law | Definition, Origins, Development, & Examples 90001 90002 90003 Common law 90004, also called 90003 Anglo-American law 90004, the body of customary law, based upon judicial decisions and embodied in reports of decided cases, that has been administered by the common-law courts of England since the Middle Ages. From it has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth (formerly the British Commonwealth of Nations).In this sense common law stands in contrast to the legal system derived from civil law, now widespread in continental Europe and elsewhere. In another, narrower, sense, common law is contrasted to the rules applied in English and American courts of equity and also to statute law. A standing expository difficulty is that, whereas the United Kingdom is a unitary state in international law, it comprises three major (and other minor) legal systems, those of England and Wales, Scotland, and Northern Ireland.Historically, the common-law system in England (applied to Wales since 1536) або менших has directly influenced that in Ireland but only partially influenced the distinct legal system in Scotland, which is therefore, except as regards international matters, not covered in this article. The legal systems in the United Kingdom have, since 1973 experienced integration into the system of European Union law, which has direct effects upon the domestic law of its constituent states-the majority of which have domestic systems that have been influenced by the civil- law tradition and that cultivate a more purposive technique of legislative interpretation than has been customary in the English common law.The regime of human rights represented by the European Convention on Human Rights (1950) has exercised a similar influence in the United Kingdom since the passage by Parliament of the Human Rights Act 1998. 90007 90008 The origin of the common law 90009 90002 The English common law originated in the early Middle Ages in the King’s Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. Like many other early legal systems, it did not originally consist of substantive rights but rather of procedural remedies.The working out of these remedies has, over time, produced the modern system in which rights are seen as primary over procedure. Until the late 19th century, English common law continued to be developed primarily by judges rather than legislators. 90007 90002 The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great (871), had developed a body of rules resembling those being used by the Germanic peoples of northern Europe.Local customs governed most matters, while the church played a large part in government. Crimes were treated as wrongs for which compensation was made to the victim. 90007 90002 The Norman Conquest did not bring an immediate end to Anglo-Saxon law, but a period of colonial rule by the mainly Norman conquerors produced change. Land was allocated to feudal vassals of the king, many of whom had joined the conquest with this reward in mind. Serious wrongs were regarded mainly as public crimes rather than as personal matters, and the perpetrators were punished by death and forfeiture of property.The requirement that, in cases of sudden death, the local community should identify the body as English ( «presentment of Englishry») — and, therefore, of little account-or face heavy fines reveals a state of unrest between the Norman conquerors and their English subjects. Government was centralized, a bureaucracy built up, and written records maintained. Controversy exists regarding the extent to which the efficient government of the Anglo-Norman realm was due to the legacy of Anglo-Saxon institutions or to the ruthlessness of the Norman invaders.Elements of the Anglo-Saxon system that survived were the jury, ordeals (trials by physical test or combat), the practice of outlawry (putting a person beyond the protection of the law), and writs (orders requiring a person to appear before a court; 90015 see below 90016 The development of a centralized judiciary). Important consolidation occurred during the reign of Henry II (1154-89). Royal officials roamed the country, inquiring about the administration of justice. Church and state were separate and had their own law and court systems.This led to centuries of rivalry over jurisdiction, especially since appeals from church courts, before the Reformation, could be taken to Rome. 90007 Henry II (left) disputing with Thomas Becket (centre), miniature from a 14th-century manuscript; in the British Library (Cotton MS. Claudius D.ii). 90018 By permission of the British Library 90019 Get exclusive access to content from our тисяча сімсот шістьдесят вісім First Edition with your subscription. Subscribe today 90002 The Normans spoke French and had developed a customary law in Normandy.They had no professional lawyers or judges; instead, literate clergymen acted as administrators. Some of the clergy were familiar with Roman law and the canon law of the Christian church, which was developed in the universities of the 12th century. Canon law was applied in the English church courts, but the revived Roman law was less influential in England than elsewhere, despite Norman dominance in government. This was due largely to the early sophistication of the Anglo-Norman system. Norman custom was not simply transplanted to England; upon its arrival, a new body of rules, based on local conditions, emerged.90007 .90000 90001 Terms to Know 90002 90003 90004 Each of the Terms to Know relates to concepts found in the Declaration of Independence and the 90005 Preamble to the Constitution. Click on the term listed below to read an explanation of its meaning. 90006 90005 90008 90005 We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness-That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.90010 90004 90006 90013 The meaning of «self-evident truths.» 90014 Thomas Jefferson was the principal author of the Declaration of Independence. The Declaration states, «We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness ….» 90013 What does «self-evident» mean? 90014 According to Jefferson and other prominent thinkers of his time, such statements as «all Men are created equal» and «endowed by their Creator with certain unalienable Rights ‘are obviously true.Such statements do not require proof. The «truths» are held to be unquestionable and beyond debate, since their truth is said to be obvious. They can be stated without elaborating or defending them. These ideas were very familiar to Jefferson and the other authors and editors of the Declaration. They were also very familiar to most Americans of the time. Why should this have been so? 90013 History of the term «self-evident truths.» 90014 That «all Men are created equal» and «endowed by their Creator with Certain unalienable Rights» was self-evident to Americans at the time of the writing of the Declaration.They were a deeply religious people who were very familiar with the idea of ​​universal human equality from the teachings of Christianity and from English republicanism. They were familiar with the idea of ​​inalienable rights from the political writings of John Locke’s Second Treatise and other English sources. The «Pursuit of Happiness» would have been a self-evident consequence of the natural right to liberty, which no supporter of the Revolution doubted. The colonists also believed strongly that the just powers of government are derived from the consent of the governed and that the governed have a right to revolution when government betrays its trust.Again, these ideas came from Locke and English republicanism. Jefferson said that his purpose in writing the Declaration was to express a shared understanding of «the American mind.» Over the course of a few days in June 1776 рік, Thomas Jefferson laid out the most fundamental principles and central political beliefs of the American Revolution and of the People the Revolution created. In stating that certain central propositions are «self-evident» truths, Jefferson expressed what amounted to a common political creed.The «American Creed» has been commented upon by patriots and scholars ever since. In reexamining it today, we realize that this American Creed continues its role in providing cohesive force to a society not only divided by conflicting positions on controversial issues, but also united in seeking the fulfillment of its founding ideals. 90005 90004 90008 «All Men are created equal» 90010 90006 90004 90005 90013 The meaning of the idea that «All Men are created equal.» 90014 The Declaration of Independence states that among the «truths» that Americans hold to be «self-evident» is that «all Men are created equal.»What did Thomas Jefferson mean by this statement? 90006 There are two ways that all «men» -all persons-might be «created equal.» One is that they are all by birth or naturally political equals. This means that no one is legitimately the ruler of others by birth and no one is by birth the subject of a ruler. The other is that human equality goes deeper than just political equality. In this sense, all people are considered of equal value and worth, or equal in the eyes of God. All are created 90008 moral equals 90010.In fact Jefferson intended both of these senses of natural equality. Late in life he stated that in composing the Declaration he was not stating original principles or ideas of his own. Instead, his writing «was intended to be an expression of the American mind.» Both senses of natural human equality were common beliefs of colonial Americans in 1776. 90013 History of the idea of ​​political equality 90014. Ideas of natural political equality were developed in seventeenth-century England and exported to its colonies across the North Atlantic.They were the expressions of English republican thought by writers such as the so-called «Levellers» (1640s), republican political theorist Algernon Sidney (1623-1683), and (especially) John Locke in his Second Treatise (1690). All of these sources speak of natural human political equality flowing from their natural equality by birth. «Equals,» Sidney wrote, «can have no right [to rule] over each other.» Locke emphasized that political equality is an aspect of man’s natural equality. Jefferson cited English republican Richard Rumbold’s (1622-1685) graphic analogy that «none comes into the world with a saddle on his back, neither any booted and spurred to ride him.»For these writers, since all are by nature political equals, legitimate government authority arises only by consent. 90013 History of the idea of ​​moral equality 90014. The idea of ​​the moral equality of human beings has more ancient origins. The equality and universal fraternity of humanity was a doctrine of the Stoic philosophers of the third century BC. These ideas were taken up and spread by Christianity, which held that each person has an immortal soul and that each person is equal in the sight of God.The Apostle Paul (5 AD-67) famously expressed this egalitarianism, saying, «There is neither Jew nor Greek, there is neither slave nor free, there is neither male nor female, for you are all one in Christ Jesus» (Galatians 3 : 28). Centuries later, the Protestant Reformation deepened the idea of ​​universal moral and political equality in the doctrine of the «priesthood of all believers,» which attacked church hierarchy, and in various aspects of self-rule in church government. 90013 Equality and the American mind 90014.In colonial America, where Christianity was already deeply established, the Great Awakening, a religious revival movement that swept the colonies from the 1730s to the 1760s (a Second Great Awakening would take place in the nineteenth century), helped spread the idea of ​​universal moral human equality, including equality among social classes. By the eve of the Revolution, universal human equality was a common American idea. It is little wonder that the Virginia Declaration of Rights-adopted on June 12, 1776 while Jefferson was working on his draft Declaration-asserted that «all men are by nature equally free and independent ….»90005 90004 90039 90006 90004 90008 «All Men are … endowed by their Creator with certain unalienable Rights.» 90005 90010 90006 90013 The meaning of the term «unalienable Rights.» 90014 The Declaration of Independence states «all Men are … endowed by their Creator with certain unalienable Rights.» What does «unalienable Rights» mean? (In the final draft edited by Congress, the word «inalienable» was inadvertently changed to «unalienable» by a copyist.) Inalienable rights are rights that we are unable to give up, even if we want to.According to the concept of inalienable rights found in the Declaration of Independence, liberty is such a right. That means that if we signed a contract to be a slave, we would not have an obligation to keep it; and despite the contract, no one would have a right to our services. Having rights that are inalienable does not mean they can not be attacked by our being arbitrarily killed, imprisoned, or otherwise oppressed. It means that such acts are not morally justified and that we have a ground for moral complaint.90013 History of the idea of ​​»inalienable Rights.» 90014 One key to understanding «inalienable» rights (as distinguished from ordinary, «alienable» rights) is found by turning to one of Thomas Jefferson’s rough drafts of the Declaration of Independence. There, he originally wrote that «all men» are «endowed by their Creator with [inherent &] inalienable rights ….» Shortly before Jefferson wrote these words, the Virginia Declaration of Rights stated: 90004 90006 90004 90008 That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they can not, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.90005 90010 90006 The similarity of this passage in the Virginia Declaration and Jefferson’s version is readily apparent. The Virginia Declaration defines «inherent» rights as those that «all men» «can not … divest their posterity.» The key words here are «inherent» and «can not.» The rights Jefferson calls both inherent and inalienable are those that we are unable to get rid of, for the simple reason that they are part of us, helping to define what we are. The dictionary tells us that «inherent» means «involved in the constitution or essential character of something.»Thus» inalienable «rights are inherent in us because they refer to specific qualities that make us human beings. Without them we lose our humanity. With no inherent right to life and liberty, we would be in the same position as ordinary animals such as cattle or sheep. Human beings are different: our right not to be treated like an animal is part of our very nature that we are powerless to change. We are unable to change our nature, and so we are unable to rid ourselves of certain of our essential qualities, such as the capacity to make moral choices.These «qualities» are the basis of our «inalienable rights.» 90005 90013 The meaning of the term «Pursuit of Happiness.» 90014 In the Declaration of Independence, Thomas Jefferson announced that every human being has «certain unalienable rights,» among which are those to «life, liberty, and the pursuit of happiness.» What did he mean by «the pursuit of happiness»? 90004 90006 To answer this, we should bear in mind that in writing the Declaration, Jefferson said he was not attempting to put forth an original philosophy of his own.Rather, it «was intended to be an expression of the American mind,» that is, the opinions held by most if not all Americans of his time. If is difficult, however, to say with precision what most Americans in 1776 thought «the pursuit of happiness» meant. 90004 90006 90013 The history of the term «Pursuit of happiness.» 90014 Since Jefferson did not invent the phrase, the best we can do is discover its source and determine what it meant to its originator. Almost surely, Jefferson read about the «pursuit of happiness» in John Locke’s Essay Concerning Human Understanding (1690), in which he discusses how the human mind operates: 90004 90006 90008 As therefore the highest perfection of intellectual nature lies in a careful and constant pursuit of true and solid happiness, so the care of ourselves, that we mistake not imaginary for real happiness, is the necessary foundation of our liberty.The stronger [the] ties we have to an unalterable pursuit of happiness in general … the more are we free from [obedience to an immediate impulse for some pleasure]. 90004 90013 90014 90006 90010 90013 What the «pursuit of happiness» is. 90014 Every day we make numerous choices in deciding what course of action will add to our well-being-what will make us happy. Making these choices is the pursuit of happiness. The results of our choices are not all equal: we soon discover that choosing some pleasures, especially following momentary impulses, leads not to happiness but to pain.But if we use our faculty of foresight, recalling past experience, we learn to postpone immediate gratification and see what choices are really in our interest. Thus, learning self-control based on experience is essential to happiness. 90004 90006 90013 Pursuing happiness as an inalienable right 90014. According to Locke, this continuous process of choosing is part of human beings ‘unchangeable nature. Since our nature compels us to constantly make choices about what we believe gives us well-being, such choosing is inherent in our nature-in Jefferson’s terms, it is inalienable.Accordingly, our right to make these choices is inalienable, and, unless our actions attack the rights of others, it is wrong for government to interfere. 90004 90006 90013 Private happiness, public happiness, and moral goodness. 90014 Locke, Jefferson, and others learned from ancient philosophers, especially Aristotle, that these choices have ethical or moral dimensions: those without moral virtue can not be happy. Many of our choices have social consequences and therefore have a civic dimension when they enhance or subtract from «public happiness.»Thus» the pursuit of happiness «must refer both to public and to private happiness. 90004 90006 90008 We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. 90005 90005 90039 90010 90013 The meaning of the term «justice.»90014 The Preamble states that one of the Constitution’s purposes is to» establish Justice. » What is meant by justice? Justice refers generally to fairness. The meaning of justice has been contested for more than 2,000 years of human history and remains contested today. The concept of justice has long been divided into three types: distributive justice, procedural justice, and corrective justice. 90004 90006 90013 Distributive justice. 90014 Distributive justice refers to the fairness of the distribution of benefits and burdens among persons or groups in society.Benefits may be such things as pay for work or the right to speak or vote. They may include almost anything that can be distributed among a group of people that would be considered useful or desirable, such as praise, awards, opportunities for education, jobs, membership in organizations, or money. 90004 Burdens may include obligations, such as homework or chores, working to earn money, paying taxes, serving on juries, or caring for another person. They may include almost anything that can be distributed among a group of people that would be considered undesirable, such as blame or punishment for wrongdoing.90006 Issues and controversies over the fair distribution of benefits and burdens in society are very common and often highly contested, such as debates over health care benefits and taxes. 90004 Phrases in the Constitution that are designed to promote distributive justice include: 90006 90101 90102 Article IV. Section 2. 1. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. 90103 90102 Amendment XIV.Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 90103 90102 Amendment XV.Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. 90103 90102 Amendment XIX. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. 90103 90102 Amendment XXIV. Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.90103 90102 Amendment XXVI. Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age. 90103 90114 90005 90013 Procedural justice 90014. Procedural justice refers to the fairness of procedures or ways of doing things. More specifically, procedural justice refers to the following: 90101 90102 the fairness of how information is gathered 90103 90102 the fairness of how decisions are made 90103 90114 Procedural justice does not refer to the fairness of decisions themselves.That is a matter of either distributive or corrective justice. The goals of procedural justice are the following: 90101 90102 to increase the chances that all information necessary for making wise and just decisions is gathered 90103 90102 to ensure the wise and just use of information in the making of decisions 90103 90102 to protect the right to privacy, human dignity, freedom, and other important values ​​and interests such as distributive and corrective justice 90103 90102 to promote efficiency 90103 90114 Scholars and others who have studied procedural justice often claim that it is the keystone of liberty or the heart of the law.Observers of world affairs have sometimes claimed that the degree of procedural justice present in a country is a good indicator of the degree of freedom, respect for human rights, and other basic rights in that country. A lack of procedural justice is often considered an indication of an authoritarian or totalitarian political system. Respect for procedural justice is often a key indicator of a democratic political system. 90004 90006 90004 Phrases in the Constitution designed to promote procedural justice include: 90006 90101 90102 Article I, Section 9.The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. 90103 90102 Article III, Section 3. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.90103 90102 Amendment V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.90103 90102 Amendment VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.90103 90102 Amendment VII. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. 90103 90114 90004 90013 Corrective justice. 90014 Corrective justice concerns the fairness of responses to wrongs or injuries suffered by a person or group. Fair responses to wrongs and injuries may vary widely.In some instances, one may ignore what has happened, forgive the person causing the wrong or injury, or use the situation to educate the person to prevent a repetition of the event. In other situations, one might wish to require a person to compensate in one way or another for a wrong or injury done to others. In some instances, courts of law may punish wrongdoers by fines, imprisonment, or even death. 90006 90004 Corrective justice has one principal goal: the fair correction of a wrong or injury.In addition, we may want to prevent or discourage future wrongful or careless conduct by teaching a lesson to the wrongdoer or making an example of him or her. Thus, the purposes or goals of corrective justice are the following: 90006 90101 90102 90013 correction 90014 — proposing a remedy or imposing a penalty to set things right in a fair way 90103 90102 90013 prevention 90014 — responding to a wrongdoing in a way that will prevent the responsible person from doing wrong again 90103 90102 90013 deterrence 90014 — discouraging other people from committing wrongs and injuries for fear of the consequences 90103 90114 90004 Correction, prevention, and deterrence are essential to the very existence of society.Without efforts to serve these goals, disorder and chaos may result. Ensuring fair responses to wrongs and injuries is important not only with regard to criminal behavior and civil matters but also in families, schools, and other areas of the private sector. 90006 90004 Phrases in the Constitution that are designed to promote corrective justice include: 90006 90101 90102 Amendment VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.90103 90102 Article III, Section 3.2. No Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Live of the Person attainted. 90103 90114 90013 90005 The meaning of the term «domestic Tranquility.» 90014 The Preamble to the Constitution states that one of its purposes is to «insure domestic Tranquility.» What does this term mean, and why was it included in the Preamble? 90004 90006 Today, laws enacted by Congress that promote domestic tranquility include those dealing with terrorism, providing government the capacity to enforce the laws and keep the peace, providing for national security, providing for and protecting peaceful assemblies and demonstrations, and providing citizens with peaceful means of attempting to monitor the actions of their government and air their grievances.90004 90006 90004 The Framers had good reason to seek to «insure» domestic tranquility. Literally «domestic Tranquility» means peace and quiet at home-at home in America, as opposed to in other nations. Tranquility for the Framers meant the absence of riots, rebellions, and similar symptoms of social disorder. They were greatly concerned with domestic tranquility because social disorder had become an increasingly fearful, dangerous, and common state of affairs in the new states. It threatened the political stability of the country, which had a weak central government that could not control the conflicts that were taking place in the states.90006 90005 90013 The history of the Framers ‘concern with domestic tranquility. 90014 Economic turmoil and violence in post-Revolutionary America, 1783-87. Social disorder after the Revolutionary War was caused mainly by economic conflict between farmers and merchants. During the Revolution, farmers borrowed money to meet the demand for food for domestic and foreign armed forces, along with civilian demand. At the end of the war, farmers could no longer sell as much of their produce as before.But the people who had loaned them money demanded that they pay back the loans. At the same time, state governments demanded high property taxes from farmers to pay off debt caused by fighting the British. Without funds for repayment, farmers ‘property was seized and auctioned off. Those unable to pay their debts were imprisoned. High inflation made matters worse for the newly free states. 90004 90006 90013 Framers demand redress of grievances. 90014 The fight for freedom from British oppression seemed to have been futile to the farmers and others being bankrupted and imprisoned.Some decided to burn down courthouses since records of private debts and public taxes were held there. And there, too, trials of bankrupt people awaiting debtors ‘prison were held. By the mid-1780s, acts of violence protesting these conditions had become commonplace. One demand of the people in debt was that states issue paper currency for payment of debts, since there was an acute shortage of gold and silver coins. In Exeter, New Hampshire, in September тисячу сімсот вісімдесят шість, farmers surrounded the state legislature and demanded that debt be canceled and paper currency issued.Elsewhere (for example, in Pennsylvania, Maryland, Vermont, and Virginia), farmers burned down courthouses. 90004 90006 90013 Inadequate government response to disorder. 90014 Most of these riotous uprisings were sooner or later defeated. But the new nation’s most prominent leaders were very concerned at the government’s inability to deal with the growing disorder. The lack of a sufficiently powerful central government was apparent to leaders such as George Washington and James Madison.It was a principal reason that Madison and others called for a meeting in Annapolis, Maryland, in September +1786, to «Remedy Defects of the Federal Government.» 90004 90006 Shays ‘Rebellion and the U.S. Constitution. As the Annapolis Convention met, the most serious of these disorders had hardly begun. This was Shays ‘Rebellion in Massachusetts that began in August 1786 and stretched into 1787. The conflict pitted over-taxed farmers against wealthy merchant Loyalists, whose property had been restored after the Revolution.This extensive, sometimes bloody conflict convinced state leaders that the Articles of Confederation must be amended. With popular rebellion seemingly out of control, the case for revising the Articles of Confederation was greatly strengthened. The result was the Philadelphia Convention that opened in May, resulting in the creation of a new Constitution that greatly increased the powers of the federal government. 90005 90013 The meaning of the term «general Welfare.» 90014 The Preamble to the U.S. Constitution states that one of its purposes is to promote the «general Welfare.» Article I, Sec. 8. 1. of the Constitution states that Congress shall have power «to lay and collect Taxes [and] Duties, … to … provide for the … general Welfare of the United States ….» This raises two questions: What does «general Welfare» mean, and what powers did the Constitution give to Congress to promote the general welfare? 90004 90006 The «general Welfare» refers to the well-being of the nation and its people.General welfare refers to the welfare of all of the people in the nation, not a select few or even a majority at the expense of a minority. Laws passed by Congress that promote the general welfare might include, for example, laws that provide for clean air and water and other elements of a healthy environment, that provide for health care for all people, that provide for public safety and protection against terrorism or foreign powers, that provide for equal educational opportunity, and that provide for safe highways, bridges, and tunnels.90004 90006 90013 The history of controversy over what powers the Constitution gives to Congress in the «general Welfare» clause. 90014 People had disagreed over what powers the Constitution gives to Congress to promote «the general Welfare» even before the Constitution was ratified in 1788, and the topic is still debated today: Does the «general welfare clause» (Sec. 8) give Congress the power to spend taxes on anything it pleases? Or does it refer only to spending on the enumerated powers listed in Article I, Sec.8. 1.? 90004 90006 The Anti-Federalists were opponents of ratification of the Constitution. Before its ratification, they argued that the «general Welfare» provision of Article I gave Congress unlimited powers to legislate whatever they wished. The central government, they said, would be all-powerful and a dangerous threat to liberty. 90004 90006 90013 Position 1 90014. 90013 Congressional powers should be limited to spending on its enumerated powers 90014. James Madison has been called the «Father of the Constitution.»He is one of the authors of the Federalist Papers that supported the ratification of the Constitution. In response to the Anti-Federalist claim that the Constitution gave unlimited powers to Congress, he argued that «the powers delegated by the Constitution to Congress and the rest of the federal government are few and defined.» «Few and defined» means that the Constitution does not give Congress the power to spend taxes on whatever it chooses but limits it to spending on the enumerated powers listed in the Constitution.90004 90006 90013 Position 2 90014. 90013 Congressional powers are not limited to its enumerated powers 90014. Alexander Hamilton was one of the framers of the Constitution and authors of the Federalist papers. He argued that the general welfare clause allowed Congress to tax and spend for the general welfare without being limited by the enumerated powers. 90004 90006 90013 U.S. Supreme Court decisions on the meaning of the general welfare clause 90014. Under our Constitution, the Supreme Court of the United States is given the power to interpret the meaning of the Constitution.The Supreme Court did not rule on the meaning of the general welfare clause unit 1930. Then, in the case of the United States v. Butler (1936), the Court agreed with Hamilton’s position that the clause did not limit Congress to its enumerated powers. But the Court did say that spending must be limited to matters promoting the national, not local, welfare. 90004 90006 The following year, in Helvering v. Davis (1937), the Court declared that the Social Security Act of 1935 was constitutional.In doing so, the Court accepted Hamilton’s expansive view of the general welfare clause. 90004 90006 90013 Continuing controversy over the general welfare clause 90014. In recent decades, arguments have again arisen about whether congressional powers under the general welfare clause can be used to allow Congress to legislate on whatever it decides furthers the general welfare. One side argues that government under the U.S. Constitution is one of «enumerated powers» limiting congressional powers to those listed in the Constitution.The other side takes the Hamiltonian position and that of the U.S. Supreme Court in the above cases in support of its view that the powers of Congress are not limited to those enumerated in the Constitution. 90004 90006 90004 Whichever of these positions dominates will have a significant impact on American government and the American people. In 2010 when many members of Congress were asked what part of the Constitution justified how they wanted federal money to be spent, they claimed their positions were justified by the general welfare clause.Disagreements over the interpretation of the general welfare clause are likely to continue. 90006 90239 90240.90000 Constitutional law | Britannica 90001 90002 The nature of constitutional law 90003 90004 In the broadest sense a constitution is a body of rules governing the affairs of an organized group. A parliament, a church congregation, a social club, or a trade union may operate under the terms of a formal written document labeled a constitution. Not all of the rules of the organization are in the constitution; many other rules (e.g., bylaws and customs) also exist. By definition the rules spelled out in the constitution are considered to be basic, in the sense that, until they are modified according to an appropriate procedure, all other rules must conform to them.Thus, the presiding officer of an organization may be obliged to declare a proposal out of order if it is contrary to a provision in the constitution. Implicit in the concept of a constitution is the idea of ​​a «higher law» that takes precedence over all other laws. 90005 90004 Every political community, and thus every state, has a constitution, at least insofar as it operates its important institutions according to some fundamental body of rules. By this conception of the term, the only conceivable alternative to a constitution is a condition of anarchy.Nevertheless, the form a constitution may take varies considerably. Constitutions may be written or unwritten, codified or uncodified, and complex or simple, and they may provide for vastly different patterns of governance. In a constitutional monarchy, for example, the sovereign’s powers are circumscribed by the constitution, whereas in an absolute monarchy the sovereign has unqualified powers. 90005 Giovanni Bognetti David Fellman Matthew F. Shugart 90004 A political community’s constitution articulates the principles determining the institutions to which the task of governing is entrusted, along with their respective powers.In absolute monarchies, as in the ancient kingdoms of East Asia, the Roman Empire, and France between the 16th and 18th centuries, all sovereign powers were concentrated in one person, the king or emperor, who exercised them directly or through subordinate agencies that acted according to his instructions. In ancient republics, such as Athens and Rome, the constitution provided, as do the constitutions of most modern states, for a distribution of powers among distinct institutions. But whether it concentrates or disperses these powers, a constitution always contains at least the rules that define the structure and operation of the government that runs the community.90005 Get exclusive access to content from our тисяча сімсот шістьдесят вісім First Edition with your subscription. Subscribe today 90004 A constitution may do more than define the authorities endowed with powers to command. It may also delimit those powers in order to secure against them certain fundamental rights of persons or groups. The idea that there should be limits on the powers that the state may exercise is deeply rooted in Western political philosophy. Well before the advent of Christianity, Greek philosophers thought that, in order to be just, positive law-the law actually enforced in a community-must reflect the principles of a superior, ideal law, which was known as natural law.Similar conceptions were propagated in Rome by Cicero (106-43 bc) and by the Stoics (90011 see 90012 Stoicism). Later the Church Fathers and the theologians of Scholasticism held that positive law is binding only if it does not conflict with the precepts of divine law. These abstract considerations were received to a certain extent in the fundamental rules of positive legal systems. In Europe during the Middle Ages, for example, the authority of political rulers did not extend to religious matters, which were strictly reserved to the jurisdiction of the church.Their powers also were limited by the rights granted to at least some classes of subjects. Disputes over the extent of such rights were not infrequent and sometimes were settled through solemn legal «pacts» between the contenders, such as Magna Carta (1215). Even the «absolute» monarchs of Europe did not always exercise genuinely absolute power. The king of France in the 17th or 18th century, for example, was unable by himself to alter the fundamental laws of the kingdom or to disestablish the Roman Catholic Church.90005 90004 Against this background of existing legal limitations on the powers of governments, a decisive turn in the history of Western constitutional law occurred when political philosophers developed a theory of natural law based on the «inalienable rights» of the individual. The English philosopher John Locke (1632-1704) was an early champion of this doctrine. Others followed Locke, and in the 18th century the view they articulated became the banner of the Enlightenment. These thinkers asserted that every human being is endowed with certain rights-including the rights to worship according to one’s conscience, to express one’s opinions in public, to acquire and possess property, and to be protected against punishment on the basis of retroactive laws and unfair criminal procedures-that governments can not «take away» because they are not created by governments in the first place.They further assumed that governments should be organized in a way that affords effective protection for individual rights. Thus, it was thought that, as a minimal prerequisite, governmental functions must be divided into legislative, executive, and judicial; executive action must comply with the rules laid down by the legislature; and remedies, administered by an independent judiciary, must be available against illegal executive action. 90005 90004 The doctrine of natural rights was a potent factor in the reshaping of the constitutions of Western countries in the 17th, 18th, and 19th centuries.An early stage of this process was the creation of the English Bill of Rights є (1689), a product of England’s Glorious Revolution. All these principles concerning the division of governmental functions and their appropriate relations were incorporated into the constitutional law of England and other Western countries. England also soon changed some of its laws so as to give more-adequate legal force to the newly pronounced individual freedoms. 90005 90004 In the United States the doctrine of natural rights was even more successful.Once the American colonies became independent states (1776), they faced the problem of giving themselves a fresh political organization. They seized the opportunity to spell out in legal documents, which could be amended only through a special procedure, the main principles for distributing governmental functions among distinct state agencies and for protecting the rights of the individual, as the doctrine of natural rights required. The federal Constitution-drafted in 1787 at a Constitutional Convention in Philadelphia to replace the failing Articles of Confederation-and its subsequent Bill of Rights (ratified 1791) did the same at the national level.By formally conferring through these devices a higher status on rules that defined the organization of government and limited its legislative and executive powers, U.S. constitutionalism displayed the essential nature of all constitutional law: the fact that it is «basic» with respect to all other laws of the legal system. This feature made it possible to establish institutional controls over the conformity of legislation with the group of rules considered, within the system, to be of supreme importance.90005 90004 The American idea that the basic rules that guide the operations of government should be stated in an orderly, comprehensive document quickly became popular. From the end of the 18th century, scores of countries in Europe and elsewhere followed the example of the United States; today nearly all states have constitutional documents describing the fundamental organs of the state, the ways they should operate, and, usually, the rights they must respect and even sometimes the goals they ought to pursue.Not every constitution, however, has been inspired by the individualistic ideals that permeate modern Western constitutional law. The constitutions of the former Soviet Union and other communist countries subordinated individual freedoms to the goal of achieving a classless society. Notwithstanding the great differences between modern constitutions, however, they are similar at least in one respect: they are meant to express the core of the constitutional law governing their respective countries.90005 Giovanni Bognetti Matthew F. Shugart.