Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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Vol.41 N° 78
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Recibido el 05/02/23 Aceptado el 14/05/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Co mi té Edi tor
Eduviges Morales Villalobos
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Ma ría Eu ge nia Soto Hernández
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Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
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com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 41, Nº 78 (2023), 284-295
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Civilizational and culturological aspect
of philosophical and legal studies of
observance of human rights
DOI: https://doi.org/10.46398/cuestpol.4178.20
Nataliia Gaivoroniuk *
Hanna Siromska **
Viacheslav Serhieiev ***
Viktoriia Zahurska-Antoniuk ****
Andrii Kobetiak *****
Violeta Tohobytska ******
Abstract
The main purpose of the article was to study the key elements
of the civilizational and cultural aspect of philosophical and
legal research on the observance of human rights. The subject
of the research was specically the philosophy of human rights
observance. Methodologically it is descriptive research developed in the
domains of legal philosophy and logic. The scientic novelty lies in the fact
that in modern legal discourse several approaches to the modern cross-
cultural substantiation of the idea of human rights have been identied.
Among them deserve attention the theories of human rights, based on
the self-limitation of negative manifestations of a person, the ontology of
spheres of human existence, the idea of human identity and the possibility
of intercultural legal discourse. All allowed to conclude that, the further
development of a theory of human rights acceptable to the majority of
countries, in the opinion of the authors, is connected precisely with the
otological concepts of human rights, among which the intercultural legal
approach can be of great importance, in heuristic and hermeneutic terms.
Keywords: civilizational aspects; human rights; legal aspects; philosophy
of law; intercultural law.
* Department of Socio-Behavioral, Humanitarian Sciences and Economic Security, Lviv State University
of Internal Aairs. ORCID ID: https://orcid.org/0000-0001-8510-2011
** Department of Socio-Behavioral, Humanitarian Sciences and Economic Security, Lviv State University
of Internal Aairs. ORCID ID: https://orcid.org/0000-0002-5322-4994
*** Zhytomyr Polytechnic State University, Zhytomyr, Ukraine. ORCID ID: https://orcid.org/0000-0001-
7859-0408
**** Zhytomyr Polytechnic State University, Zhytomyr, Ukraine. ORCID ID: https://orcid.org/0000-0003-
3334-4494
***** Zhytomyr Polytechnic State University, Zhytomyr, Ukraine. ORCID ID: https://orcid.org/0000-
0001-6899-0571
****** National university of civil defense of Ukraine, Kharkiv, Ukraine. ORCID ID: https://orcid.
org/0000-0002-4642-6117
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Vol. 41 Nº 78 (2023): 284-295
Aspecto civilizatorio y cultural de las investigaciones
losócas y jurídicas sobre la observancia de los
derechos humanos
Resumen
El propósito principal del artículo fue estudiar los elementos clave del
aspecto civilizatorio y cultural de la investigación losóca y jurídica sobre
la observancia de los derechos humanos. El tema de la investigación fue
especícamente la losofía de la observancia de los derechos humanos.
Metodológicamente se trata de una investigación descriptiva desarrollada
en los dominios de la losofía jurídica y la lógica. La novedad cientíca
radica en que en el discurso jurídico moderno se han identicado varios
enfoques de la moderna fundamentación intercultural de la idea de
derechos humanos. Entre ellos merecen atención las teorías de los derechos
humanos, basadas en la autolimitación de las manifestaciones negativas de
una persona, la ontología de las esferas de la existencia humana, la idea de
identidad humana y la posibilidad del discurso jurídico intercultural. Todo
permitió concluir que, el desarrollo ulterior de una teoría de los derechos
humanos aceptable para la mayoría de los países, en opinión de los autores,
está relacionado precisamente con los conceptos otológicos de los derechos
humanos, entre los cuales el enfoque jurídico intercultural puede ser de
gran importancia, en términos heurísticos y hermenéuticos.
Palabras clave: aspectos civilizatoros; derechos humanos; aspectos
jurídicos; losofía del derecho; derecho intercultural.
Introduction
In the globalization context, the problem of human rights is sharply
discussed in two planes: the natural-legal understanding of the origin
of fundamental human rights, that is, their universality and cultural
dierences (pluralism) regarding their recognition and implementation.
This is due to the relevance of the institutional development of global
law based on universal foundations (which are actually the principles of
human rights), and the actualization of the problem of multiculturalism in
a transitive society.
The theoretical discussion between the two dominant approaches is
still going on today, but it is inappropriate to resort to certain extremes
and reduce the right to only moral belonging or coercion. Since law, in our
opinion, acts as a harmonious unity of both sides, denitely outlined in
these concepts. Indeed, in their nature they have more in common than
dierent, and their formation, genesis and modern production are largely
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Civilizational and culturological aspect of philosophical and legal studies of observance of human rights
interdependent. It is a person who is the unifying basis, he is both an
initiator and a practical element and a direct object of inuence of a specic
concept of human rights.
The confrontation between the positivist and natural-legal positions,
as already noted, has been going on for a long time. Moreover, they are
not limited to the sphere of scientic discourse, but also develop their
concepts in individual constitutions of modern states. For example, the
natural law (superpositivist) concept of human rights is implemented in the
constitutions of Italy, Spain, France, the United States, and the positivist
one is implemented in the constitution of Austria. Consequently, the
disagreements of these approaches to the nature of human rights require
the introduction of certain scientic adjustments.
Of great importance in shaping the idea of ensuring human rights was
the theory of natural law, which was due to the reasoned concept declared
by it of inalienable human rights and freedoms, regardless of the will of the
state power, must be guaranteed and ensured at every historical stage in
any society.
In the context of this paradigm, the position was substantiated that the
phenomenon of distinguishing a special group of human rights, denoted by
the denition of “inalienable rights”, is due to the genesis and convincing
scientic and theoretical interpretation of the doctrine of natural law.
Motivating the phenomenon of law, the superpositivist theory appeals to
the essence (nature) of a person, and not to certain external factors (the
state, authorities, etc.), outlining its nature, which creates an opportunity,
gives the potential to use such categories and “right ‘ and ‘man’.
Note that it was Aristotle’s teaching that became the source of lively
philosophical discussions, since the thinker for the rst time divided the
right into natural and volitional, which is actively continuing between
supporters of natural law and positivists today.
1. Materials and methods
Achieving the goal of the study required the solution of certain
problems, which led to the use of theoretical ones: induction and deduction
to collect primary legal information; analysis and synthesis for information
processing; selection of factual material and data based on the processing
of the regulatory framework; descriptive-statistical - to characterize the
civilizational and cultural aspect of the philosophical and legal studies
of the observance of human rights; the logical method is to understand
the patterns of the civilizational and cultural aspect of the philosophical
and legal studies of the observance of human rights; retrospective - in
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order to clarify the features of the civilizational and cultural aspect of the
philosophical and legal studies of the observance of human rights.
2. Literature review
As most scientists note, the key property of natural law is that its
quintessence is universal human values. Natural legal concepts characterize
human rights as a manifestation of the values of human existence and
a manifestation of objective needs. However, it should not be ignored
that the understanding of the genesis and essence of human rights was
assessed taking into account two antithetical positions, a certain antipode
of naturalism was the positivist approach to understanding human rights.
Under the conditions of legalistic legal understanding, the concepts of state
and law dominate over the concept of human rights, and in the second
understanding, the dominants are the individual and their natural rights
(Custers, 2021; Kzanchian, 2020; Kellman, 2021).
Human rights issues have always occupied a large place both in life
and in the political and legal doctrine. In dierent periods of human
history, human rights were and to a certain extent depend on the external
environment, namely the public “shell” in which the individual existed
and exists. Its convergence from a position without rights and completely
dependent on this environment to freedom marks the evolution of both the
actual rights and freedoms of a person, and their legal regulation.
Of course, the axiological approach to the analysis of the phenomenon
of human rights is correct, since it allows comparing, on the one hand, the
degree of freedom of the individual, and, on the other hand, the degree of
readiness of the state to follow the proclaimed principles and norms. The
entire modern list of fundamental ideas and principles in the eld of human
rights and freedoms was formulated in the era of antiquity and partly in the
Middle Ages and served as the basis for the formation and approval of the
relevant ideas and concepts of modern and modern times (Kryshtanovych
et al., 2022; Mantelero and Esposito, 2021).
According to scientists (Muller, 2019; Nersessian, 2018), human rights
dene the space that provides each person with the conditions for his self-
realization, that is, the space of his personal autonomy. They are the moral
criteria by which the legal order must be guided. According to their status,
human rights act as independent standards for criticizing laws and other
political and legal institutions, that is, as criteria for legitimation.
Human rights are, rst of all, the moral rights that every person in
the world has simply by virtue of the fact that he or he is a human being.
Demanding our human rights, we morally demand, usually from the state,
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Civilizational and culturological aspect of philosophical and legal studies of observance of human rights
not to do something, because this is an interference in our personal sphere,
a violation of our personal dignity (Rodrigues, 2020; Sergeeva, 2022).
The content of human ontology is the direction of the will “to search for
oneself in behavior”, to realize the natural features of eciency, to ensure
that his actions are useful for nature and society. At the same time, the eorts
of the will should be directed to the fulllment by a person of that social role
that is necessary to ensure the harmony of life, to maintain beauty, balance,
which are a condition for the existence of everything natural.
Education is an objective phenomenon of social life, its function, has
a national, historical character. It is an attributive element of human
existence in the implementation of “humanity” that accompanies a person
from the rst steps of his historical existence. In every historical epoch,
in every nation, the goal of education was certainly associated with ideas
about a person, his essence and place in society (Zbigniew, 2019; Yukhno,
2012; Wong et al., 2020).
Despite this, the issue of the civilizational and cultural aspect of the
philosophical and legal studies of the observance of human rights has not
been disclosed and, therefore, is relevant.
3. Research Results and Discussions
The interpretation of human rights as natural is fundamental to national
declarations and contemporary international documents, and continues to
this day as the standard and degree of just solutions, the basis for assessing
and resolving genocides, massacres and wars. The culturological and
historiosophical basis of a high assessment of natural human rights is the
principle of Eurocentrism, the spread to all countries of the world of the
system of value coordinates developed by Western countries, and their
dissemination as a single standard of law.
But over the course of the 20th century, the globalization of the world
space is rapidly taking place. The cultural, economic and political expansion
of the West into the countries of the third world caused a tangible protest
of these countries, the search for ideologies that became an alternative to
aggressive Eurocentrism and the political and legal paradigms associated
with it. Among the complaints are accusations against Western countries
not only of “cultural imperialism”, of promoting their political and economic
interests, but also of cultivating an idea of natural human rights that is alien
and unacceptable to many non-Western countries.
The ideology of multiculturalism has become one that not only puts
the culture of the world on the same level, but also equalizes their legal
principles and approaches. It was under its inuence that the idea arose
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that the idea of human rights is purely Western, it was formed at a certain
stage in the development of Europe, and it postulates an abstract, universal,
rationalistic vision of man, which is not mandatory for all cultures of the
world. So, the idea of human rights, self-evident for Europeans, needs a
new justication in order to become acceptable to the countries of the non-
European world (Vinogradova et al., 2021; Sylkin, 2021).
In pre-modern times, the idea of rights and freedoms depended on
the characteristics of the class society. Representatives of those social
classes were considered free who freely obeyed the political and legal Law
recognized by the authorities, recognized the supreme Law of God over
themselves and did not belong to the disenfranchised part of the population
of slaves and serfs. The rights and freedoms of people were endowed by
God and the ruler of the country. God endowed with the highest freedom to
make a moral choice, and the ruler, who acted on the basis of political law,
imitated dynastically or blessed by the Church, gave state-political rights
and freedoms.
Enlightenment doctrine of human rights comes from the idea of a single
universal nature of man - a rational, moral, free and creative being. It is
valuable in itself because it is the main active and conscious agent of life
and social relations. And it does not matter what cultural environment a
person belongs to, the main thing is that under no circumstances can he be
deprived of rationality, morality, freedom (Sylkin, 2021).
In the late 19th and early 20th centuries, the classical view of a person
was replaced by the non-classical ideal of cultural relativism, whose
representatives argued that it was impossible to talk about a person and his
rights without taking into account the cultural context. Every culture has its
own «image of man».
And if we respect the right of cultures to their own way of existence,
we must accept the existence of cultures for which man and his rights
do not represent the highest value. This is, for example, ancient China,
Egypt or Byzantium, which did not give rise to the idea of human rights,
and therefore, it is not universal, which means that no one has the right to
spread it, let alone impose it on other peoples.
In the philosophy of the late twentieth century, theories are becoming
more and more common, in which the rejection of the enlightenment
interpretation of the universalism of human nature and his rights are
replaced by the concepts of the plurality of human nature. They focus on the
diversity of forms and manifestations of man. So, the relativism widespread
in the conditions of globalization has also touched upon the fundamental
problem of human nature and his rights, which actualizes the discussion of
legal anthropology alternatives to the classical theories.
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Nataliia Gaivoroniuk, Hanna Siromska, Viacheslav Serhieiev, Viktoriia Zahurska-Antoniuk,
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Civilizational and culturological aspect of philosophical and legal studies of observance of human rights
At the beginning of the twentieth century, the search for alternatives took
place in many directions. In particular, the position of a kind of minimalism
in understanding the essence of man is promising. This approach proposes
to abandon any metaphysical statements about the essence of man, to leave
all the grandiose supernarratives of human existence.
Acceptable for all cultures and situations is the position that a person
is a being capable of both constructive and creative activity, social peace
and tranquility, and non-constructive, destructive activity. A person can
potentially be both a perpetrator and a victim. If he chooses the rst path,
then he becomes a potential victim for others. Conversely, the role of the
victim prepares her and others for the crime. Hence, the thesis arises that
the only way to remain human is to give up the role of the victim and the
role of the criminal.
Legal theory can be derived from the ontology of the main spheres of
human existence - the body, will, communication, understanding. The
existence of the body, its needs and aspirations constitute the human right
to a decent life. In accordance with this, the right to a healthy life, the
right to one’s own emotions, and even the right to peace and pleasure are
established. The desire and will to live, the need and ability to make a choice
determine the right to freedom and independence of human existence.
Everyone should be able to make their own decisions and be responsible
for their consequences. The reciprocal right to have another’s freedom
imposes certain restrictions on my freedom, but gives rise to respect for the
rights of others. The existence of speech and the need for communication
determines the human right to freedom of speech and discussion of any
issues. Since we are confronted with the opinions of others, the right to
one’s freedom of speech is respect for the right to express another.
Freedom of expression implies freedom of thought and one’s own
understanding, and hence the right of everyone to their own opinion, its
upholding and protection. A similar rationale can be applied to any culture,
but only when that culture recognizes that the satisfaction of these human
needs is desirable.
Recently, in substantiating the idea of rights, arguments have appeared
that come from the idea of human identity. Man as a person has the right to
an original and identical existence. In addition to personal identity, one can
talk about cultural, social, religious, political identity. In particular, when
we talk about human rights in the context of cultural identity, it should
be remembered that in a certain cultural environment, rights can have a
peculiarity that is not typical for the West.
This is explained by the determining inuence of local traditions, which
should be taken into account. So, if for European countries the practice is
widespread when children give their parents of advanced age to shelters
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to preserve their rights, then in Africa this situation is perceived as a
violation of human rights. For example, according to individualistic ethics,
monogamy is the norm, while the ethics of tribal solidarity in the East
allows polygamous families. You can also give examples of the dierence
in the assessment of the punishment in dierent countries of the world or
even cultural dierences in relation to the death penalty. Justication of
law from the standpoint of cultural identity makes sense if the diversity of
cultural identities of dierent legal groups is recognized.
Another methodology of law, the theory of intercultural discourse, can
become a deepening of the previous one. According to this approach, in
a situation of the cultural diversity of the world, one should not only take
into account the uniqueness of human communities and their ideas about a
person, but also strive for an intercultural legal dialogue.
Intercultural discourse is based on the basic recognition of the cultural
identity of the community, which does not allow the imposition of a certain
model and argumentation of one community (for example, Western) on
another (for example, Eastern), one’s own vision of a person and his rights
- to other cultures.
On the other hand, the absence of a generally accepted theory of
human rights, shared by representatives of various socio-cultural and
civilizational communities, requires the establishment of basic principles
that are acceptable to all, since value conicts will occur between these
cultural communities. The search for common values is an important task
of international intercultural discourse. Its result is the adoption of the
thesis that the highest value for all cultures is the value of human life. And
this maxim is true for everyone, despite the specics of individual regions
and civilizations.
Recognizing the right of our culture to identity, we must thereby
recognize the similar right of another culture. And it is precisely in order
for a meaningful dialogue to take place between representatives and
foundations of dierent cultures that an intercultural discourse should
be developed, the task of which is to create a language and an intellectual
environment within which it would be possible to reach a certain agreement
in understanding the problems of a person and his rights.
Human and collective rights are a variety of universal values and norms.
They can receive proper legitimation in a free, impartial discussion, taking
into account the specics of the world’s cultures. To legitimize human
rights within individual cultures, intercultural legal discourse lays down the
principles of tolerance, recognition of the signicance and uniqueness of all
legal cultures in the world.
The main model of the human rights protection mechanism is presented
in Fig. 1.
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Nataliia Gaivoroniuk, Hanna Siromska, Viacheslav Serhieiev, Viktoriia Zahurska-Antoniuk,
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Civilizational and culturological aspect of philosophical and legal studies of observance of human rights
Subprocess
Progress
Information
B2
Subprocess
Progress
Information
B3
Subprocess
Progress
Information
B4
Implementation of
reforms
The social protection
Implementation of
digital technologies
Adaptation of current
legislation to
international standards
B1
B2
B3
B4
State regulation
mechanisms
International
Laws and Norms
Directives
to ensure
subprocess B2
Directives
to ensure
subprocess B3
Directives
to ensure
subprocess B4
The results obtained
The results obtained
The results obtained
Current legislature
Resource
support
Figure 1. The main model of the human rights protection mechanism.
Formed by authors.
An important part of the further development of intercultural discourse
is the correspondence of universal legal norms and institutions to such an
image of a person that has developed within the dominant culture. In the
future, for the duration of the process of legitimation of legal norms, it is
necessary to nd arguments for rooting the ideological sources of this or
that introduced legal phenomenon in the tradition of the host socio-cultural
community. That is, the implementation of intercultural legal discourse
within local cultures is a complex and multi-stage process.
Conclusions
The idea of human rights is fundamental to the development of European
and world civilization. Its inuence on the development of not only law,
but also morality, religion, the foundations of civil society, and politics
cannot be overestimated. The idea of “natural”, “sacred” human rights and
freedoms in one or another cultural form permeates the entire history of
Europe from antiquity to the present.
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To solve these problems in the philosophy of law there is no single
approach. The range of views here extends from the assertion of the
self-evidence of human rights to the complete denial of the possibility of
substantiating human rights in general. The main paradox of the evolution
of human rights lies in the contrast between the gradual withering away of
their ideological roots (Christianity and classical theories of natural law)
and the development of their content and jurisdiction on a worldwide level.
In other words, the more the discourse of human rights spreads, the greater
the uncertainty about their foundations becomes.
The scientic novelty lies in the fact that in modern legal discourse several
approaches to the modern intercultural substantiation of the idea of human
rights have been identied. Among them worthy of attention are theories
of human rights, based on the self-restraint of negative manifestations of a
person, the ontology of the spheres of human existence, the idea of human
identity, the possibility of intercultural legal discourse.
In general, the results of the study implied the disclosure of the problems
of analysis of the civilizational and cultural aspect of the philosophical and
legal studies of the observance of human rights.
The approaches to the modern substantiation of the idea of human
rights identied in the study refuse from educational approaches. At
the same time, there is a search for the latest theories that substantiate
the possibility of universal principles that ensure the development and
implementation of universal legal norms for non-Western countries of
the world. Indicative here is the theory of intercultural legal discourse,
which demonstrates promising possibilities for realizing this goal. Further
development of a theory of human rights acceptable to most countries,
in our opinion, is connected precisely with the analyzed concepts, among
which the intercultural legal approach can be of great importance.
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Esta revista fue editada en formato digital y publicada
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