1. General definition of the status, its history and goals of application in law, sociology and public health

Eminent English legal scholar E. Jenks observed that the term “status” initially referred to nothing more than the position that an individual held as to the law⁸. This term stems from the Latin word “status” meaning “determined, prescribed, defined; constant, permanent”⁹.

According to the Roman law, a mere material existence of an individual was not a sufficient reason to recognize him as a legal person (and such a concept distinguishes the Roman law from the law of nowadays)¹¹. An individual was considered a legal person only when he obtained a certain position (status) in respect of ius libertatis, ius civitatis and ius familiae, meaning the law of freedom, the law of citizenship and the law of family accordingly (these indications of ^{[269] [270] [271] [272] status are the first to be found in written sources[273]). The substance of the status of an individual was defined according to those legal norms, which regulated his behavior. Therefore, the status was common for all the addressees of the norms. Altogether, these individuals made a separate group (category) of persons; and the basic elements of their status were considered to be those specific rights[274] that were characteristic for such group (category) and were established in the norms of law (legislation). In other words, the status was directly linked to the law (legislation) while the differentiation of the norms of law that regulated relationships between individuals of different groups (categories), was correspondent to their differing legal statuses.}

A human being held the position (status) that was given to him by the law (statutum), and it is this position that allowed him to be considered as a person. As for the slaves, they were not considered as persons and therefore had no status. Thus, the status in Roman law was a legal instrument to differentiate individuals. It allowed to distinguish (to separate) one group (category) of individuals from another through differentiation of legal regulation and it was mostly used to distinguish the free citizens from the slaves.^[275]

Certain features of the Roman legal concept of the “status” have been embraced by the contemporary sociology, which gives the term “status” two definitions: (1) the status is a certain role of an individual within the social system, (2) the status is a positive or negative reputation, prestige, authority of a person within the system of social stratification.^[276] Both of these definitions show that the concept of “status” received a wider substance in sociology compared to legal studies, and this is very significant practically as social practice defines the role of a person, his or her reputation, prestige and authority not only via legal norms, governing this person’s behaviour. The broad definition of the term “status” used in sociology, allows to examine not only formation of general (social) status of a person as a part of some group or any other type of community^[277], but also allows to study the formation of an individual (personal) status within that given group (or community)^[278].

Within different groups, an individual (personal) status of one and the same person may turn out to be different. However, in the context of sociology, this usually does not provide (and apparently should not provide) a reason to unite the whole set of individual statuses that a certain person holds within various groups (communities), into some “general individual (personal) status”.

When an individual knows his individual (personal) status within a given group (community), it helps him to adjust his behavior in relation to the other members of that group (community), while the others may use this information to define how they should behave with that individual.^[279] The dissonance between the individual’s behavior and his status may cause (and usually does so) motivational and behavioral problems for both the individual and the others because in any society all social statuses within any group (community) are arranged in certain systems of hierarchy.^[280].

At the same time, law and sociology are not the only areas of science and practice that constantly and broadly use such term as the status nowadays. In particular, the status is used in the area of health care (public health service) in the form of “health status”^[281]. Health status of a certain individual, group (category) of individuals or of any other community (including the population of a certain state in general) is defined by a fairly stable (in the mid-term perspective) and relatively solid state of health of the people within a respective community. It is not that easy to clearly define the term “health status”. The main reason for that is the absence of one general definition of the notion “health”, such definition that could be effective in various situations and would satisfy everyone^[282].

At the same time due to widespread use of the term “health status” within both international and local practice (in the practice of a number of leading countries of the world²²) it is necessary to identify those reference points that would allow to define the term in the context of important practical situations. Therefore, the efforts of the Australian Institute of Health and Welfare (affiliater to the Government of Australia) in formulating such reference points should be supported. The Institute used a well-know definition of “health” which was established in the preamble to the Constitution of the World Health Organization (hereinafter - the WHO): “health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity” .²³ Based on this definition the Institute elabourated the following characterization of health status: this status is an integral term, which stands for something more than the presence or absence of any disease²⁴.

The following characteristics are often included in the substance of the term health status in practice: (1) self-assessment of the individual’s state of health - ^{[283] [284] [285] excellent, very good, good or bad[286], (2) average length of life, sickness and death rates[287]. However, when the term is used broadly, its’ substance also includes the functional state of people, their mental wellfare and a number of other indicators of health. Most of the described approaches as to the health status were reflected in the definition which was elabourated by the WHO. According to the definition by the WHO, health status is a state of health of a citizen, or a group of citizens or the population of a given state in general that is measured inter alia by making use of the data on the people’s subjective assessment of their health, on one or more indicators of death and sickness rates of the population, e.g. life expectancy, or on the degree of disctribution of the most common diseases (infectious, chronic or nutrition-related diseases).[288]}

Based on the health status one may distinguish a number of special groups (categories) of individuals that are the most vulnerable in terms of health (hereinafter - vulnerable health groups). For example, such individuals (groups of individuals) are as follows: children, women, elderly people, persons with disabilities, persons having socially important diseases (e.g. diabetes, mental diseases and behavioral diseases, high blood pressure diseases and others) and (or) with dangerous infectious diseases (tuberculosis, HIV/AIDS, diphtheria and others)^[289], prisoners etc. Therefore, the use of the concept of status (in the form of the “health status”) in the area of healthcare (public health service) makes it possible to divide (stratify) people in certain categories or groups - just like in the Roman law or Sociology. At the same time, such stratification is made for special purpose, i.e.

At the same time, the division which was made within the Roman law upon the concept of the status had different purposes, such as establishment and (or) fixation of the boundaries that were in the most times hard to overcome or insurmountable at all (e.g., an individual who had the status of a slave in the Ancient Rome could hardly obtain the status of a free person). The rigidity of legal boundaries that were formed upon this kind of status, as well as limited capability of an individual to define the substance of his or her status have made it possible for the classic scholar of legal anthropology Henry Main not only to compare such legal instruments as the legal status and the contract, but also to argue (based on the theory of evolution (progress)) that the status historically precedes the contract.^[290] H. Main also noted that in traditional non-flexible societies the establishment of rights and duties of an individual did not depend on his or her will: they were fixated by the sources external in relation to that individual’s will. Moreover, he argued that along with development of modern societies the individual freedom and the expression of individual will have started to play a more important role and therefore contractual legal relations have become dominant. People started to take sovereign decisions as to their lives more often.

This led to devaluation of the legal status and, subsequently, of the status-related legal relationships.

However, the contemporary French historian of law N. Rouland disagreed with H. Main’s “evolutionary (progressive)” approach. N. Rouland argues, quite reasonably, that the dominant position of contractual or of status-related legal relationships derives from the choice of society rather than from the law of history.

Nevertheless, in the context of modern society we consider it possible to argue that nowadays such instruments as the legal status and the contract are usually applied in comprehensive unity. Here are several examples: (1) legal status deriving from a contract, in particular, labour status of an employee that emerges out of his labour contract with an employer, (2) a contract that narrows or widens the content of a legal status (when there are no statutory restrictions on entering into such a contract). But we believe that this widening or narrowing may not be qualified as a modification of a legal status. The legal status, which has been “modified” in such a way, is usually not stable enough. At the same time, as it has been pointed out above, one of the meanings of Latin word “status” is “stable, unchangeable’. Such a “status” cannot contain any indicative meaning for third parties as they are presumed not to be aware neither of the fact of the “modification” itself, not of the scope thereof.

Unlike in the Roman law, in modern law, sociology and healthcare (public health) the instrument of the status is less used in order to identify the existing boundaries (stratification) and to inform everyone about the existence of such boundaries, i.e. to discover direct or indirect inequality between the people and to inform the public about that; rather, it is used to suggest and establish the ways to eliminate (diminish) such boundaries (inequality) or to track the boundaries, which have been discovered.

Below we would attempt to substantiate this statement. It is well-known that the modern humanitarian sphere is dominated by the principle of equality which is guaranteed by the norms of international laws, as well as by national constitutions of the most of the countries, and, apparently, that prevents the development of rigid social stratification. However, this does not mean that the concept of legal status has lost its primary significance; yet a number of authors support this conclusion^[292].

Surely, nowadays the significance of this concept as an instrument of rigid division (stratification) of individuals has diminished; however, it has not totally vanished and we suppose that it will never do. Nevertheless, at the same time the significance of the legal status as an instrument to attain a directly opposite purpose, i.e. to support social equality, has increased.

There is a number of categories of individuals in the modern society who are limited in the scope of their abilities to exercise their basic (general) rights and freedoms. One of the examples of that is the poor and the people with disabilities. Another example are the persons bearing additional duties, most of the times of the public nature. They include, in particular, officers of law enforcement agencies and medical employees, burdened by their professional duty. These persons do their duty regardless the fact of being at service or at work^[293], including those cases when it is risky and dangerous for their lives and health. In other words, they appear not to be equal as to the rest of the members of the society in such matters. Due to that, the formal way of guaranteeing equality for them (formally equal legal status in terms of their rights and social guaranties) would lead to clear unfairness and to the social tension corresponding to it.

In this context, the formally equal status, which is granted to de facto unequal persons, could become an instrument that would eliminate old boundaries and simultaneously create new ones. Such boundaries could be, for example, actual inequality between the poor and the rich, between persons with disabilities and other individuals, between the people burdened by 24-hour additional public duties and people who are free of such duties, etc. Thus the unlimited impact of the principle of formalistic equality would create an absurd situation when the natural inequality of individuals in their abilities and capacities is only deepening, leading to a situation where the concept of equality of human rights could have never been implemented in real life.

In this regard we should agree with N. Smith, who argued that the application of one and the same norm in regard to all individuals does not necessarily grant them equal benefits. He also argued that the “essence”, which was the subject of equality, should be such an “essence” that would have a real value for such individuals.³³ It appears that when it is otherwise one needs to partially abandon the principle of formal equality in order to establish justice. By the way, such an approach was once introduced by Aristotle, and despite being quite old, the approach at question stays relevant, it still applies and develops even nowadays. It was also Aristotle who suggested the well-known concept of the differentiation to achieve fairness (and, in particular, to attain actual equality).

Given the topic of this research and taking into account the modern of the term “health status” it would be rather interesting to remind that Aristotle originated from the family of hereditary doctors and, as A. F. Losev and A. A. Takho-Godi pointed out, he had practical medical experience, although did not become a professional doctor.³⁴ Medicine remained for him such a close and conceivable science that he often used examples from medical practice to explain some of his sophisticated theories that he described in the most complicated philosophical treatises. However, the works of Aristotle demonstrate that he was aware that a doctor, who treats similar patients differently or who treats different patients equally, would not succeed in the normal course of events.

He particularly stated that “a doctor does not consider the health as is [meaning not as a general matter], but rather in the context of health of an individual, and even more, in the context of health of “that certain ” individual, since the doctor treats each patient separately’ and that “medical art ...is not one and the same for every existing matter”³⁵. Thereby, Aristotle in fact emphasized the necessity of applying diverse (differentiated) approaches to different persons. He stated that “fairness, as I see it, means equality - that is how the things are, but not for everyone, but only for the equals; inequality also may be considered as ^{[294] [295] [296] fairness, that is how things are, but again not for everyone, just for the unequals”36 and that “inequality ... between the equals and difference between the same are unnatural, and no unnatural thing can be beautiful.”31. Ha also supposed that “equality for the equals means that they have the same status”38.}

These observations of Aristotle (especially the last one) lead to a conclusion that Aristotle considered the fair equality for equal individuals as an equality of their positions or in fact as an equality of their certain statuses (if we apply the modern definition of status used in sociology as a certain position of a person). At the same time the term “position (state), characteristic” (in Classical Greek 6¾ or phonetic “hexis”) played a central role in Aristotle’s ethical and political philosophy; the term was used by the philosopher also to assess the dignity of a human being.³⁹ The latter observation points to similarity between this concept and the legal concept of the “status”⁴⁰. ^{[297] [298] [299] [300] [301]}

The Classical Greek term “hexis” derives from the Classical Greek verb e%eiv (phonetic “echein”), which means the following: to have, to possess, to be in a certain state or position. Accordingly, Aristotle used the term “hexis” to stand for relatively stable (static) state of possessing, for example, health (in Classical Greek nyfeta or phonetic “hygieia”^[302], also sometimes єпє^іа or phonetic “euhexia”), or for the static position of possessing complex knowledge, fibers (state) of soul or other characteristics, including patrimonial or professional features. It is easy to notice certain common features between the substance and instrumental definition of the term “hexis” and those of the modern term “health status”.

As it has been pointed out earlier, the health status is one of the instruments that allow distinguishing the groups of individuals that are vulnerable in terms of health in order to achieve fairness in the area of health care. In the social state the public authority usually grants the individuals of such groups a special legal status, which means providing them with the health care (protection) on an enhanced level. Such actions of the state power are determined by the fact that public health is one of those values that must receive special protection within the constitutional purpose of the social welfare state (part 2 of Article 7 of the RF Constitution). So by granting those individuals, who are part of the groups vulnerable in terms of health the special legal status makes it possible to legally provide and achieve fairness in the area of the health care^[303].

However, in a number of cases one of the guarantees of effectiveness of realization of this status would be the presence of a particular group of professionals (medical employees) that specialize in providing health care to the members of a vulnerable group (or groups), provided that their professional activity is supported by slate and society. Such state and public support of professional activity of medical employees is carried out, in particular, by creating specialized medical institutions and (or) establishing of a special medical qualification (speciality), as well as granting a special legal status to the professionals having such qualification and (or) participating in providing relevant medical care (or assisting in providing medical care). For example, Federal law No. 77-FZ “On prevention of distribution of tuberculosis in the Russian Federation” (adopted on 18 June 2001)^[304] established the measures of social support not only to the individuals under standard medical examination for tuberculosis, and not only to those affected with tuberculosis (Article 14), but also to the medical and other professionals that provide anti-tuberculosis medical treatment (Article 15); moreover, the law prescribed to establish the specialized medical institutions (sub. 1 Article 8, sub. 2 Article 10, etc.)^[305].

The other examples are in the areas of pediatry, obstetrics and gynecology. France was the first to introduce these medical professions; this was among other things connected with the need to solve the problems of birth rates and infant mortality (problems of health care for women and children)^[306]. Solving these problems was an important state and public objective for France of the late XVIII century, as it became the first European country to face the decline of the birth rates.^[307] As one of the guarantees of the proper health care for women and children (individuals vulnerable as regards their health), the French legislator has established the rule that the medical employees practicing in the abovementioned areas must undergo specialized trainings and (or) to obtain a degree in the relevant specialization. Implementation of this rule was supported by the emergence of many private and public specialized medical courses on obstetrics in the XVIII century’s France.

The problem of the decline in population still exists at the present time (in particular, in Russia). This problem is of state and public significance, which implies^[308]: (1) control over the health status of women and children, i.e. control over its health indicators, (2) granting the respective individuals with a special legal status in the area of legal relations concerning the health care, (3) granting a special legal status to the medical employees who provide specialized medical care to the mentioned categories of individuals.

As it has already been pointed out, the modem term “health status”, which is widely used in the area of health care, has an apparent semantic connection with the Classic Greek term “position (state), characteristic” (s^iq or phonetic “hexis”); Aristotle applied it to characterize health and to assess the state of fairness in a society. The philosophical conclusions produced by the creative power of this thinker for the purposes of analysis of the health problems and the problems of fairness became the precursors for the concepts of the status and the differentiation that were implemented by will of the ancient Roman legislator (Roman people). This proves that the great German legal theorist R. von Ihering was right when he stated: “Let the mind draw conclusions, but only the will can put them into

,. „48

practice” .

The will of the modern legislator has also implemented some other approaches that followed from the observations of Aristotle, those that aimed at achieving actual equality between the individuals when their formal equality is unfair. Granting such individuals with special legal status provides fair compensation for limitation of their opportunities or burdens them with additional duties. For example, the legal status may include: (1) additional rights (in particular, the right to a benefit that is provided to an economically disadvantaged person or the right of a disabled person to be provided with the means of rehabilitation), (2) specialized social guarantees (for example, the right of officers of law enforcement agencies and medical employees to retire regardless of their age (upon time in service)). ^[309]

Therefore, with regard to certain individuals the principle of actual equality comes into effect along with the principle of formal equality, and this objectively adjusts and evens their legal status with the legal status of other members of the society. Achieving this fairness is a constitutional goal of the social state that may be achieved by rejecting irrelative application of the general legal status in respect of these individuals and by granting them the special legal status (status with special features). This would apparently facilitate their harmonized inclusion into the society, as well as help the society achieve unity, peace and consonance.

All of the aforesaid makes it possible to conclude that in the modern society the concept of the status is implemented as means to attain at least two types of objectives: (1) the traditional objective connected with the division of individuals into categories (stratas) and creation of certain boundaries between them, (2) the modern objective connected with the implementation of the principle of social welfare state which involves achievement of social fairness that provides for mitigation of those boundaries between people.

Similar problems may be resolved via introduction of a special legal status of a medical employee. As has been argued above, medical employees burdened with their professional duty, do serve it even when they are not at service or at work. Thus, this feature of their labour activity makes them unequal to the other members of the society. Due to this reason, granting them formal equality, i.e. formally equal legal status in terms of their rights and social guarantees, would lead to an apparent unfairness and the social tension correspondent to it. All of these, along with the public significance of labour of medical employees, makes it necessary to establish special guarantees, privileges, etc. in their legal status. Then, since the diseases of their patients may also be different, this requires one more division, which means to divide the special legal status of medical employees into the general (universal) element and the specialized (differentiated) element. The latter element of the specialized status should, on one hand, guarantee the provision of quality medical care to respective patients and, on the other hand, support medical employees with additional guarantees corresponding with specifics of their labour (if necessary). Thus, the legal status of the mentioned professionals is meant to ensure both the division of the individuals of medical profession into separate groups of specialists and also maintain social fairness, as well as prerequisites for coordination of their common efforts in work, i.e. it must mitigate the boundaries that exist between them. These matters will be discussed further below in this research.

1.2.