Правова визначеність: pro et contra
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Date
2018
Authors
Матвєєва, Юлія
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Abstract
У статті проаналізовано порівняння принципу правової визначеності в англосаксонській і континентальній правових системах. Чи можна протиставляти європейську правову визначеність
американській правовій невизначеності? Які причини появи в американській школі правового реалізму заперечення правової визначеності? Чи справді існує така чітка відмінність між двома системами в розумінні правової визначеності?
The question addressed by this article is whether it is possible to state that European adherence to legal certainty and American legal uncertainty make up the characteristics of the two distinct legal systems (common law and civil law). There is an inevitable certainty and uncertainty both in common law and civil law states. The law is based on the language which leads us to the “internal uncertainty of the language itself.” This applies to the court practice, statutory law; nevertheless, the worldwide tendency regarding the usage of the plain language can be observed. It is also worth to support the idea that the law resembles a number of “legal formants”. This means that legal analysis should take into account the legislation, court practice and legal academic works regardless of whether the legal system considers the latter as sources of law. Further research should focus on how these formants compete and interact with each other. Therefore, legal systems very rarely have only one correct key answer to a certain problem. Thus, legal reforms that nowadays appear to be fairly frequent and lead to system changes in the legal regulation, reveal the legal system instability. In addition, both the change of judicial practice and the dynamic approach (method) of legal interpretation are the display of legal uncertainty. But those are quite usual practices. In fact, the law is a phenomenon that depends on changes of public life. At the same time, legal certainty is an element of the rule of law without which, according to Professor Ronald Dworkin, a well-known American philosopher of law, it is impossible to understand the phenomenon of law as such. Therefore, legal certainty is also inherent to the law itself. It is realized in requirements to written legal texts (clarity, exactness, and availability of acts of legislation, court decisions, acts of subjects of imperious plenary powers) and in an attempt to provide the unity of judicial practice. As a result, the regarded elements of legal certainty and uncertainty are at the same degree specific both for common and civil law. Sometimes certain legal uncertainty is acceptable and even desirable. Countries have to balance between certainty and ability to adjust to the law.
The question addressed by this article is whether it is possible to state that European adherence to legal certainty and American legal uncertainty make up the characteristics of the two distinct legal systems (common law and civil law). There is an inevitable certainty and uncertainty both in common law and civil law states. The law is based on the language which leads us to the “internal uncertainty of the language itself.” This applies to the court practice, statutory law; nevertheless, the worldwide tendency regarding the usage of the plain language can be observed. It is also worth to support the idea that the law resembles a number of “legal formants”. This means that legal analysis should take into account the legislation, court practice and legal academic works regardless of whether the legal system considers the latter as sources of law. Further research should focus on how these formants compete and interact with each other. Therefore, legal systems very rarely have only one correct key answer to a certain problem. Thus, legal reforms that nowadays appear to be fairly frequent and lead to system changes in the legal regulation, reveal the legal system instability. In addition, both the change of judicial practice and the dynamic approach (method) of legal interpretation are the display of legal uncertainty. But those are quite usual practices. In fact, the law is a phenomenon that depends on changes of public life. At the same time, legal certainty is an element of the rule of law without which, according to Professor Ronald Dworkin, a well-known American philosopher of law, it is impossible to understand the phenomenon of law as such. Therefore, legal certainty is also inherent to the law itself. It is realized in requirements to written legal texts (clarity, exactness, and availability of acts of legislation, court decisions, acts of subjects of imperious plenary powers) and in an attempt to provide the unity of judicial practice. As a result, the regarded elements of legal certainty and uncertainty are at the same degree specific both for common and civil law. Sometimes certain legal uncertainty is acceptable and even desirable. Countries have to balance between certainty and ability to adjust to the law.
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Keywords
правова визначеність, правова невизначеність, англосаксонська правова система (сім’я), континентальна правова система (сім’я), правові форманти, правова адаптація, стаття, legal certainty, legal uncertainty, common law system (family), civil law system (family), legal formants, legal adaptation
Citation
Матвєєва Ю. І. Правова визначеність: pro et contra / Матвєєва Ю. І. // Наукові записки НаУКМА. Юридичні науки. - 2018. - Т. 1. - С. 29-32.