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Legal Studies
Reference:

Legal essence of self-determination of a person and a citizen

Dostavalova Alena Sergeevna

Postgraduate student, Department of Civil Law and Process, Ural Institute of Management (branch) of the Russian Academy of National Economy and Public Administration under the President of the Russian Federation

620144, Russia, Sverdlovsk region, Yekaterinburg, ul. 8 Marta, 66

adostavalova@yandex.ru

DOI:

10.25136/2409-7136.2023.8.43770

EDN:

UIBRNX

Received:

07-08-2023


Published:

14-08-2023


Abstract: the subject of the research is the definition of the social and legal essence of self-determination of a person and a citizen. An analysis of domestic doctrinal research on this subject made it possible to single out three aspects in understanding the self-determination of a person: determining one's behavior without the intervention of third parties, establishing one's status, and the possibility of obtaining information about oneself. Each of the presented concepts, denoted by the term "self-determination", has its own value and contributes to improving the quality of life of citizens. However, an incorrect understanding of the legal essence of self-determination can give rise to negative social consequences, which already has its manifestations in Russian society. As a result of the study, the conclusion was formulated that, contrary to the widespread opinions of legal scholars, the first aspect of self-determination is not a subjective right or part of it, but the embodiment of the principle of the inadmissibility of arbitrary interference by anyone in private affairs, the effect of which, in turn, is limited the principles of inadmissibility of abuse of the right, good faith of subjects of civil law and restriction of rights in order to protect the interests of other persons. The second aspect of self-determination is not a power, but a legal fact - a unilateral transaction, in the course of which it is necessary to take into account the requirements of the legislation on the conditions for its validity. The third aspect is not a personal non-property, but an organizational subjective right, the possibility of realizing which depends on the legitimacy of the goals of using the requested information by a citizen.


Keywords:

individual rights, individual, self-determination, self-identification, privacy, principle of law, legal fact, intangible benefits, personal non-property rights, organizational rights

This article is automatically translated. You can find original text of the article here.

In the Russian legal order, the system of personal non-property rights of citizens is developing at a fairly rapid pace, an increasing number of intangible benefits are allocated and personal non-property rights are being formed about them. However, it cannot be said that all of them have received sufficient doctrinal understanding and legal mediation. One of these is the right to self-determination of a person and a citizen, the legal consolidation of which is currently absent. The doctrine identifies at least three variants of the substantive aspect of this concept: first, the independent definition of something (primarily one's behavior) (Krasavchikova L. O. The concept and system of personal, non-property rights of citizens (individuals) in the civil law of the Russian Federation: dis. ...Dr. yurid. sciences'. Yekaterinburg, 1994. pp. 322-323), secondly, the definition of oneself, or rather of one's status [1, 2], thirdly, the possibility of obtaining information about oneself [3], two of the latter of which are often referred to as the right to selfidentification [4, 5].

In the modern world, these aspects of self-determination of an individual are certainly valuable and significant, since they provide her with the potential ability to know herself, her needs and interests, and organize her life activities. However, all these approaches cannot be considered to correspond to objective legal reality, and the humanization of law, the development of liberalism and the popularization of the psychology of individual freedom lead to a significant exaggeration of the opportunities provided to citizens within the framework of personal non-property legal ties. Such opportunities are often assessed by citizens as absolutely unlimited powers, which in turn leads to negative consequences for the copyright holders themselves and for society as a whole.

Thus, the idea of gender self-determination of athletes participating in competitions arose, the attitude to which in society is by no means ambiguous [6]. During the COVID-19 pandemic, "anti-vaccinators" vividly manifested themselves, actively spreading a negative attitude to vaccination based on biased arguments [7]. I.S. Izerusheva, referring to her status as a citizen of the USSR, challenged the decision of the Leninsky District Court of Nizhny Tagil, Sverdlovsk region on the recovery of arrears for housing and utilities, penalties as a foreign agent registered in another state (Russia) (Appeal ruling of the Sverdlovsk Regional Court of 20.06.2023 in case no.33-9462/2023 // https://oblsud--svd.sudrf.ru ). In this regard, it seems necessary to identify the legal essence of these aspects of personal self-determination, to determine the legal forms and limits of implementation and to ensure their legal protection.

Self-determination as an independent determination of a person's behavior. In the Russian Federation, perhaps, the first fundamental study in which the "right of a person to freedom to determine his behavior in individual life at his discretion, excluding any interference, was recorded from the side of other persons" is the mentioned dissertation by L.O. Krasavchikova. This power was positioned as a component of the right to privacy. It is noteworthy that Part one of the Civil Code of the Russian Federation (Civil Code of the Russian Federation) (Collection of Legislation of the Russian Federation. 1994. No. 32. St. 3301), adopted in the year of L.O. Krasavchikova's dissertation, in Article 1, as one of the principles of civil legislation, fixed provisions on the inadmissibility of arbitrary interference of anyone in private affairs and on the exercise by individuals of their rights at their own will and in their own interest. In the future, the right of a person to the freedom to determine his behavior was recognized in the domestic theory of law under various names: self-determination (Filimonova E. A. The constitutional right of Russian citizens to privacy: abstract. dis. ... cand. jurid. sciences'. Volgograd, 2005. p. 8), autonomy [8], freedom of behavior, movement, communication, privacy (Ostrovsky A. S. The effect of the constitutional principle of privacy in criminal proceedings: abstract. dis. ... cand. jurid. M., 2006. pp. 9-10) and was legalized by the Ukrainian legislator in Article 271 of the Civil Code of Ukraine (Law No. 435-IV of 16.01.2003. https://zakon.rada.gov.ua/laws/show/435-15?lang=ru ) as the general content of any personal non-property right, which constitutes "the ability of an individual to freely, at his own discretion, determine his behavior in the sphere of his private life."

In fact, the category of free (independent) determination of a person's behavior duplicates the named principle of civil legislation (Article 1 of the Civil Code of the Russian Federation), because the formulations "of their own free will and in their own interest" and "at their discretion" are identical from a substantive point of view, as well as the formulations "inadmissibility of interference by anyone ..." and "excluding any interference by other persons." Sometimes there is a substitution or identification of these concepts, when some authors first speak of independence as a power that is part of subjective law, and then as a principle (Izmailova N. S. Privacy in civil law: on the example of the law of Great Britain, the USA and Russia: autoref. dis. ... cand. jurid. M., 2009. pp. 16-17).

And the remaining component of the power of self-determination, i.e., the "definition of one's behavior" is quite comparable with the exercise of rights, because the exercise of civil rights is not an event, but the behavior of the subject. It turns out that the power of self-determination fully coincides with the named principle of civil legislation, which gives grounds to question the very existence of such a power.

However, such duplication of the principle by authority is not taken into account by supporters of the allocation of the right to self-determination. Thus, N.N. Petrunova, analyzing the experience of Switzerland, notes that self-determination "became one of the fundamental principles of the 2012 reform" [9], but ignores the fact that domestic legislation was almost twenty years ahead of Swiss legislation, having fixed the principle of inadmissibility of arbitrary interference in private affairs in the Civil Code of the Russian Federation back in 1994.

Moreover, in the conditions of practically uncontrolled development of information technologies, the so-called right to information self-determination is popularized, i.e. the ability to independently determine the turnover of information about oneself, in particular one's personal data. E.V. Talapina, analyzing European experience in this area, speaks about the potential possibility of the emergence of an intersectoral principle of information self-determination [10], again however, without taking into account the already existing provisions of Article 1 of the Civil Code of the Russian Federation.

In itself, the idea of considering privacy as a principle of law is not alien to the domestic doctrine. However, the content of this principle is reduced either to ensuring non-interference in the private life of citizens only by the state (Romanovsky G. B. Constitutional regulation of the right to privacy: abstract. dis. ... cand. jurid. St. Petersburg, 1997, p. 11), or to the inadmissibility of interference by any third parties only in the private life of citizens, without taking into account the private affairs of other subjects of civil law (Kuzakhmetova S. E. The principle of inviolability of private life: theoretical and legal aspect: abstract. dis. ... cand. jurid. sciences'. Saratov, 2008. p. 10; Khuzhokova I. M. The constitutional right of a person and a citizen to inviolability of private life in the Russian Federation: abstract. dis. ... cand. jurid. sciences'. Saratov, 2007. pp. 7-8).

At the same time, the principle of the inadmissibility of arbitrary interference of anyone in private affairs and the exercise of their rights at will and in their own interest is sectoral, extending its effect to all institutions of civil law (Fedoseev A. A. Principle of cooperation of subjects of civil law: abstract. dis. ... cand. jurid. sciences'. Ulyanovsk, 2021. pp. 10-11) (including personal non-property legal relations) and protecting the private sphere of all subjects of civil law from interference by any third parties (Kosach A. S. The principle of inadmissibility of arbitrary interference in private affairs in Russian civil law: abstract. dis. ... cand. jurid. sciences'. Krasnodar, 2007. p. 5). Thus, the effect of the analyzed principle, enshrined in Article 1 of the Civil Code of the Russian Federation, extends to the realization of all subjective civil rights, including personal non-property rights of citizens, and the ability to independently determine their behavior without the intervention of outsiders is a reflection of this circumstance, being neither an independent subjective right nor an element (authority) of some specific subjective right.

Of course, the development of intersectoral and sub-sectoral (institutional) principles of law in the context of the digitalization of society and the development of the system of personal non-property rights is not seen as superfluous, but their development should be carried out taking into account already existing sectoral principles.

In addition, it should not be forgotten that the exercise of rights at will and in one's own interest is not an unlimited possibility, since it is corrected by the principle of good faith, the inadmissibility of abuse of rights and the possibility of restricting rights in order to protect the interests of other persons.

Self-determination as an independent determination of a person's status, i.e., "self-determination". In fact, citizens can position themselves in one capacity or another. But does this mean that others should unconditionally accept such a choice of an individual and, moreover, adjust their behavior based on the claims of the person who determined their status?

If we talk specifically about the legal status of an individual, then it is determined by the legislator [11]. Moreover, this provision concerns not only the general legal status of the individual, but also the special [12] and individual [13, 14]. Consequently, the power of a citizen to independently determine the legal status cannot exist in principle: neither as an independent subjective right, nor as an element of the latter, since it is the prerogative of the legislator. In this regard, it is necessary to determine the legal essence of a citizen's actions aimed at defining himself.

It should be borne in mind that the "right" to self-determination has largely been developed as a result of the popularization of the psychology of individual freedom. Psychologists, in turn, consider self-determination as a choice of something (Magakyan E. E. Professional self-determination of adults, its social and psychological factors: on the example of undergraduate graduates: abstract. dis. ... cand. psikhol. nauk. SPb., 2019. p. 6). That is, we are talking about making a decision, committing a certain volitional action. In the language of civil law, selfdetermination (determination of one's status) is rather not the content of a legal relationship, but the basis for its occurrence, change or termination, i.e. a legal fact, and volitional.

This approach fits perfectly into the existing legal doctrine and reflects the essence of self-determination. Determining your status is not an end in itself. Citizens decide to determine their status in order to be able to act in a certain way, i.e. to exercise the rights and obligations corresponding to a particular legal status.

The existing system of legal facts does not fully reflect the foundations of the dynamics of personal non-property legal relations. However, if we proceed from the available theoretical developments, then the most acceptable type of fact here is a unilateral transaction, which, as is known, is a purposeful volitional action.

With this in mind, the provisions of Article 155 of the Civil Code of the Russian Federation are of particular importance, according to which a unilateral transaction, as a general rule, does not generate any obligations for third parties. Consequently, if self-determination can be considered as a kind of authority, then, as E.M. Denisevich correctly notes, only the powers of a "law-educator" (Denisevich E. M. Unilateral transactions in the civil law of the Russian Federation: concept, types and meaning: abstract. dis. ... cand. jurid. sciences'. Yekaterinburg, 2004. p. 8), but not an independent personal non-property right capable of competing with personal non-property rights, such as the right to life, health, honor, dignity, appearance and others.

The determination of a citizen's status can generate rights and obligations for third parties (including the state) only in conjunction with other legal facts, i.e. as an element of the legal composition. For example, a disabled person may identify himself as such or refuse to recognize this status for himself, if the relevant documents are not issued. But it's one thing when a person with health problems does not want to receive excessive care from others, and another thing is to strive to become a firefighter or an astronaut. In the latter case, in addition to self-determination, it is necessary to have a legal fact-a condition that characterizes a certain level of health of a person.

At the same time, the assessment of self-determination of the status as a unilateral transaction allows us to conclude that the determination of their status should be carried out by citizens in compliance with the conditions of validity of transactions. In particular, it would be quite natural to raise the question of the validity of self-determination based on a content defect. In this case, it is worth recalling the provisions of Roman law impossibilium nulla obligatio, which do not allow claims that are unrealizable in reality to be transferred to the legal aspect [15]. Hence, self-determination as a "God" or "Emperor of the Universe" may reasonably be invalidated.

Self-determination as an opportunity for a person to obtain information about himself. Since we are talking about obtaining some information, first we need to determine the legal essence of the information itself as an object of civil legal relations. Modern legal studies distinguish information as an independent object, which differs from things by its "immaterial" nature, from immaterial goods by the absence of continuity with personality, and from intellectual property by the absence of a creative component (Salikhov I. I. Information with limited access as an object of civil legal relations: abstract. dis. ... cand. jurid. sciences'. Kazan, 2004. p. 12).

But a specific feature of the information in the framework of this study is another aspect its final (final) value. Yes, information in the modern world becomes the subject of transactions, including for a fee. But what is the actual purpose of making such transactions? Getting information as such or getting the opportunity to use it in a certain way? Yes, the secrecy (inviolability) of information is protected. But what, in the end, does this mystery provide? The inviolability of the information itself or the stability of other legal relations related to secrecy?

Probably, information is not a value in itself, but a tool that allows to realize the claims of its owner: obtaining income from its use, ensuring peace of mind by keeping information secret, etc. In this regard, it is worth recalling the opinion of the author of the theory of organizational relations O.A. Krasavchikov, who noted that organizational legal relations can be "a prerequisite for the formation, modification or liquidation of one or another civil-legal relationship of subjects" or "one of the elements of the existing civil-legal relationship" [16]. Therefore, it seems doctrinally justified that the information itself is not an object of personal or property civil law relations, but of "organizational and informational legal relations" [17].

Consequently, the possibility of obtaining information about oneself should not be considered as a personal non-property right, but as an organizational subjective right existing within the framework of an organizational legal relationship, which, in turn, aims to organize a property or personal non-property legal relationship. In this case, the purpose (orientation) of the legal relationship provided for the implementation of such an organizational subjective right acquires special legal significance. For example, if a citizen receives and uses information about his origin in order to ensure the safety of life and health or to avoid incest, then his claims to the extermination of data are seen as quite permissible. But in the case when such information is obtained and used to establish "noble roots", such actions are potentially dangerous by the occurrence of discrimination on the basis of origin in violation of Part 2 of Article 19 of the Constitution of the Russian Federation (Rossiyskaya Gazeta. 1993. 25 dec. 237; 2020. July 4th. 144). Consequently, self-determination in the sense of "obtaining information about oneself" is also not an unlimited subjective right, since the possibility of its implementation directly depends on the legitimacy of those claims, the satisfaction of which this organizational right is aimed at. Therefore, the requirements for substantiating claims to information before providing it seem quite acceptable.

References
1. Isaeva, N.V. (2012). The role of legal self-determination of the subject in the implementation of rights and freedoms. Social Sciences and Modernity, 4, 103-111.
2. Morozova, A.N. (2014). On the question of the participation of the media in the formation of human culture and the implementation of cultural rights and freedoms. News of the Tula State University. Economic and legal sciences, 1-2, 81-85.
3. Karpov, S.A. (2022). Approaches to the constitutionalization of the right to informational self-determination: the experience of Switzerland. Proceedings of the Institute of State and Law of the Russian Academy of Sciences, 17(2), 198-216.
4. Balashova, E.S., Bogacheva, A.V., & Kocheganova, P.P. (2018). On the Issue of Gender Self-Identification of Students in the Context of Modern Human Rights Discourse in the Russian Federation. Research Azimuth: Pedagogy and Psychology, 2(23), 339-342.
5. Vudarskiy, A, & Novikov, A.A. (2018). Establishing the origin of a child: a comparative legal aspect-Germany, Poland, Russia. Jurisprudence, 2(337), 268-307.
6. Tuko, D.D., Verbilov, A.F., & Shabaev, V.V. (2023). Transgender Issues in Modern Sports. Eurasian Law Journal, 2(177), 430-431.
7. Leskova, I.V., Zyazin, & C.Yu. (2021). Distrust of vaccination as information stuffing. Problems of social hygiene, public health and the history of medicine, 29(1), 37-40.
8. Maleina, M.N. (2014). The concept and types of intangible goods as objects of personal non-property rights. State and law, 7, 40-47.
9. Peturova, N.N. (2017). Reform of the legislative regulation of the protection of the rights of adults in Switzerland. Journal of Foreign Legislation and Comparative Law, 3(64), 63-70.
10. Talapina, E.V. (2022). The right to informational self-determination: on the verge of public and private. Right. Journal of the Higher School of Economics, 5, 24-43.
11. Choguldurov, S.B. (2015). The legal status of an individual (citizen) and the family-legal status of a citizen as general and special. Eurasian Union of Scientists, 8-2(17), 161-163.
12. Zhernovoi, M.V. (2017). The legal status of the individual: on the allocation of private law and public law elements. Proceedings of the Academy of the Ministry of Internal Affairs of the Republic of Tajikistan, 3(35), 39-43.
13. Mironov, V.O., & Pavelina, T.G. (2022). The relationship between the individual and the state. Agrarian and land law, 3(207), 52-56.
14. Khacheritlov, M.Zh., Kushkhov, Kh.L., & Dyshekov, M.V. (2021). To the question of the legal obligations of a person and a citizen. Issues of Russian and international law, 1(11), 207-216.
15. Genkin, D.M. (2005). To the question of the impact on the obligation of the impossibility of performance. Collection of articles on civil and commercial law. In memory of Professor Gabriel Feliksovich Shershenevich, 176-201.
16. Krasavchikov, O.A. (2005). Civil organizational and legal relations. Categories of science of civil law: fav. tr.: in 2 volumes, 45-56.
17. Nastin, P.S. (2014). Information as an object of organizational and information legal relations in the activities of business entities. Business, management and law, 1(29), 100-104.

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A REVIEW of an article on the topic "The legal essence of self-determination of a person and a citizen". The subject of the study. The article proposed for review is devoted to topical issues of the legal definition of the category of "self-determination of a person and a citizen". The author examines various approaches to this category, identifies the positive and negative aspects of each of them, and tries to identify the most accurate option. The subject of the study was the norms of legislation, opinions of scientists, materials of judicial practice. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. As the author of the article points out, "it seems necessary to identify the legal essence of these aspects of personal self-determination, determine the legal forms and limits of implementation and ensure their legal protection." Based on the set goals and objectives, the author has chosen the methodological basis of the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic, as well as draw specific conclusions from the materials of judicial practice. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (first of all, the norms of the Civil Code of the Russian Federation). For example, the following conclusion of the author: "the effect of the analyzed principle, enshrined in Article 1 of the Civil Code of the Russian Federation, extends to the realization of all subjective civil rights, including personal non-property rights of citizens, and the ability to independently determine their behavior without the intervention of outsiders is a reflection of this circumstance, being neither an independent subjective right nor an element (authority) of any- that is a specific subjective right." It is necessary to positively assess the possibilities of a comparative legal research method related to studying the experience of foreign countries and comparing it with Russian regulation. In particular, we point to the following conclusion of the author: "However, such duplication of the principle by authority is not taken into account by supporters of the allocation of the right to self-determination. Thus, N.N. Petrunova, analyzing the Swiss experience, notes that self-determination "became one of the fundamental principles of the 2012 reform" [9], but ignores the fact that domestic legislation was ahead of Swiss legislation by almost twenty years, consolidating the principle of inadmissibility of arbitrary interference in private affairs in the Civil Code of the Russian Federation back in 1994.Thus, the methodology chosen by the author is fully adequate to the purpose of the study, allows us to study all aspects of the topic in its entirety. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of theory, the topic of the legal essence of the category "self-determination of man and citizen" is complex and ambiguous. It is clear that human self-determination should have boundaries and should not, at least, violate the rights of others. It is difficult to argue with the author that "In the modern world, these aspects of personal self-determination are certainly valuable and significant, since they provide her with the potential ability to know herself, her needs and interests, and organize her life activities. However, all these approaches cannot be considered consistent with objective legal reality, and the humanization of law, the development of liberalism and the popularization of the psychology of individual freedom lead to a significant exaggeration of the opportunities provided to citizens within the framework of personal non-property legal ties. Such opportunities are often assessed by citizens as absolutely unlimited powers, which in turn leads to negative consequences for the copyright holders themselves and for society as a whole." The practical examples given by the author in the article clearly demonstrate this issue. Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. Firstly, it is expressed in the author's specific conclusions. Among them, for example, is the following conclusion: "the possibility of obtaining information about oneself should not be considered as a personal non-property right, but as an organizational subjective right existing within the framework of an organizational legal relationship, which, in turn, aims to organize a property or personal non-property legal relationship. In this case, the purpose (orientation) of the legal relationship provided for the implementation of such an organizational subjective right acquires special legal significance. For example, if a citizen receives and uses information about his origin in order to ensure the safety of life and health or to avoid incest, then his claims to the destruction of data are seen as quite acceptable." These and other theoretical conclusions can be used in further scientific research. Secondly, the author offers original conclusions and generalizations related to various approaches to determining the legal essence of self-determination of a person and a citizen. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Legal Studies", as it is devoted to legal problems related to the self-determination of a person and a citizen. The content of the article fully corresponds to the title, as the author has considered the stated problems, and has generally achieved the purpose of the study. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. At the same time, for some reason, the abstracts of the dissertations referred to by the author are indicated not in the list of references, but in the text. These references should be moved to the bibliographic list. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia (Balashova E.S., Bogacheva A.V., Kocheganova P.P., Tuco D.D., Verbilov A.F., Shabaev V.V. and others). Many of the cited scientists are recognized scientists in the field under consideration. Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership. The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the systematic positions of the author in relation to the issues of understanding the legal essence of the category "self-determination of man and citizen". Thus, the article can be recommended for publication after correcting technical issues: transferring all footnotes to the bibliographic list. Based on the above, summarizing all the positive and negative sides of the article, "I recommend sending it for revision"