The State as the Guarantee of Coexistence

The individuality of an individual arises from the moment they are born as a human being. The central concept for human rights is the human being: the individual must be under the umbrella of these rights, rather than having them granted. Granting can imply a top-down relationship; however, even where an individual tries to acquire a right, an injustice lies, because the individuality of an individual does not need a right—this right already exists for them. It may be unknown to the individual themselves, but rights exist for the individual, not the other way around; a person is not born to earn these rights. A person, or an individual, is born to use the rights that inherently belong to them, and the Constitution affirms this;

There are many theories of the origin, existence, continuation, and/or necessity of the state; in principle, humans never complain about a lack of theories. According to some concepts, the existence and/or origin of the state is linked to the theological and/or patriarchal theory, and/or the social contract theory. But this is more a matter of pure, soulless philosophy than reality, because explaining any theory through the prism of the individual and/or rights, when they are not actively fighting for these rights, makes the explainer look more like a good storyteller than a living thinker;

And yet, is the state necessary for the realization of the individual's rights to occur in such a way that the individual retains a vast array of rights?! So that their choices are not appropriated by any third parties, including the executive branch?! Should it be precisely the state that strives to protect their rights?! On the one hand, the state as a given and/or an entity is never purely benign. The state is constantly repressive; using the rights given to it, it interferes daily in the rights of any one of us. However, the key is the scale and intensity of this interference. For example, if in one country (say, North Korea) the prohibition of torture is a huge step toward building a just state, wouldn't the absence of taxes be an even greater step for a developed democracy, such as Great Britain? These examples also indicate that the state as a given is usually representative of the majority of its individuals. The main issue here is how the branch of power exercises this power, including over the individuals it governs;

Law or statute is what a specific state, through its parliament, sets as a rule for the individual. The other problem here is: if the individual does not agree with this law, what means remain for them to express their non-acceptance?! More importantly, the content: what should the acceptable and/or adopted law be like? If Great Britain were to pass a law prohibiting torture again, would it have an effect?! That is, if for the society there, a certain prohibition at the level of law already operated with direct force, and it is known to everyone that it is unacceptable, how would implementing the same thing work in another society where it is the norm? In other words, the direction of the law is determined, on the one hand, by the unity of specific individuals otherwise called a state, but the law to be adopted must definitely be characteristic of that society; it must fit the specific challenges of that particular place and territorial area;

"The principle of legal trust serves to strengthen citizens' trust in the applicable law. It is inadmissible to undermine the trust of the addressees of the law through unjustified and frequent changes to the rights granted by the law. A citizen must have a sense of trust regarding the privileges granted by the law. Legislation must fulfill the function of ensuring personal freedom. Individuals must be able to conduct their personal, professional, and economic activities within stable legal boundaries. Substantially undefined, unpredictable, and unreliable legal development creates a sense of uncertainty, which hinders human personal development. Legal security is an important precondition for an individual's personal freedom (Decision of the Constitutional Court of Georgia of 27.12.2013 on Case No. 2/3/522/553 'GP Grisha Ashordia vs. the Parliament of Georgia', §41-42)." The Constitutional Court, on the one hand, explains that the law must have the trust of society, and on the other hand, indicates/mentions legal security as a precondition for an individual's personal freedom. As for legal security as a term of a state governed by the rule of law, it has an important role for the development of the individual themselves;

Legal security in the legal space is perceived not only by guaranteeing the existence of a right but also by the existence of the means to use this right—unlike the Soviet Union, where the state interest (which is nothing more than the interests of the ruling group) was set as the means to achieve the ultimate goal. The main interest of a state governed by the rule of law is the human being, who holds these rights by virtue of being human, and not by virtue of having been born with a passport of any state. A passport confirms the inalienability of the individual's rights, but if a person does not have a passport, their individuality/humanity cannot be taken away. In the absence of a passport, they are not subject to torture, extrajudicial punishment, etc. Accordingly, the existence of rights is not subordinated to the legal system in the sense that it is not limited to a specific state; a human being is greater than the state, and if this is not the case, then the state interest will constantly oppress the individual, and an oppressed individual is an instrument of dictation;

"The most important aspect of legal security is ensuring the possibility, on the part of the state, of rectifying damage / restoring rights caused by a violation of the law. A state governed by the rule of law is based not only on the recognition of the human being as the supreme value but on its real assurance by guaranteeing the full and effective enjoyment of fundamental rights... because in a state governed by the rule of law, the state is merely a possibility, an instrument to ensure the realization of fundamental human rights" (Decision of the Constitutional Court of Georgia on the case "Citizens of Israel – Tamaz Janashvili, Nana Janashvili and Irma Janashvili vs. the Parliament of Georgia," No. 3/1/531, November 5, 2013). With this provision, the Constitutional Court indicates that the role and purpose of the state is to become an instrument for the protection of rights, including by creating a legislative base, updating the legislative base in such a way that "the individual is given the opportunity to be realized in the context of rights.";

In some cases, or in most cases, myths are spread in the name of human rights (or about them) that these rights contradict all tradition and/or morality, etc. However, the most interesting thing is that those who speak about this the most are the people who submitted to the Soviet constitution, when a person did not have the right to a fair trial; if a policeman (then militiaman) did not like them, he could detain them, and there was no objective party to check the objectivity of the detention. Furthermore, there was no presumption of innocence—meaning a person was not considered innocent, but rather guilty; and if, for example, a miracle happened and you were acquitted, the Prosecutor's Office was the supervisory body over the court. Accordingly, what kind of tradition can we talk about when the innocent are punished? Is this the tradition of the Georgian state? When the individual was deprived of the right to property? Or deprived of the right to choose where to live (there was the so-called "propiska" [registration] institution)—meaning a person could not choose their own residence?! We not only do not ask these questions in ordinary domestic terms, but we are afraid to ask these questions when trying to build a state; while the state is nothing more than "giving the individual the opportunity to be realized in the context of rights.";

The principle of legal security is not a theory, and it is directly and immediately realized in all subsequent legislative acts. For example, according to the explanation of the Administrative Chamber of the Supreme Court of Georgia: "The principle of legal trust in administrative-legal relations is protected and ensured through the principle of legality and the institutions of the right to legitimate trust; specifically, according to Article 5.1 of the General Administrative Code, an administrative body does not have the right to carry out any action contrary to the requirements of the legislation" (Decision on case No. bs-735(k-21)); and also: "The principle of trust in the state and legal security is one of the primary features of a state governed by the rule of law" (Decision on case No. bs-238-235(k-14);

It is also interesting what role the Constitutional Court assigns to the unity of persons who create the law/laws through which the right/rights of the individual are restricted and/or expanded: "The direct granting of a mandate to the members of the Parliament of Georgia by the people implies that it is precisely by them, and through the procedure defined by the Constitution, that decisions must be made regarding the foundational principles and basic essence of the country's social, economic, cultural, legal, or political development. It is their obligation to deliberate on issues whose regulation is a subject of high political and public interest. They must also determine the ways to resolve issues that affect the prospects of the country's long-term development and/or concern the intensive restriction of a fundamental right of the individual" (Decision of the Constitutional Court of Georgia of December 16, 2021, No. 1/5/1499 on the case "Mikheil Samnidze vs. the Government of Georgia," II-18). Accordingly, the parliament is not only endowed with rights but is also endowed with obligations, and the Constitutional Court must be considered the supervisor of the fulfillment of their obligations; meanwhile, the Constitutional Court points out that the parliament must determine the ways and what impact any law has on "the intensive restriction of the fundamental rights of the individual.";

The message conveyed in the title—the state as a means of ensuring coexistence—is real. The means of protecting rights means that even the state interest must step back before the rights of the individual. When the state restricts itself before the individual so that the individual is given what they have from birth—"development and security"—this is a sign that the state has succeeded. Accordingly, a state governed by the rule of law and/or the state is needed and necessary for the individual to succeed. The obligation of the state is the protection of the individual's rights, which yields the final result for the instrumentalization of the state as a means of ensuring coexistence. "Since the existence of the state is generally linked to the obligation to protect human rights, time cannot invalidate such an obligation. At the same time, by virtue of the equal existence of precisely this obligation of the state toward all people, the possibility of endlessly protecting a specific person's right in time is opposed by the necessity of preventing the threat of violating the rights of others" (Decision of the Constitutional Court on the case "Citizens of Israel – Tamaz Janashvili, Nana Janashvili and Irma Janashvili vs. the Parliament of Georgia," No. 3/1/531, November 5, 2013);