The scientific-practical Law Journal “Almanac of Law” Volume 11 (2020),
Bohinich O. L. The Role of Legal Doctrine in the Legal Practice of Ukraine
The article is devoted to the study of the place of legal doctrine among sources of law of Ukraine. In the context of the stated purpose, the retrospective path of evolution of the concept of legal doctrine is considered, the historical invariants of its existence as phenomena of legal reality are analyzed. In this connection, the place of legal doctrine in the legal practice of ancient Rome is analyzed, and its role in the formation of the universities of the Middle Ages. The subject of the study is the legal systems of England and the Muslim legal system.
The views of scholars and practitioners of these countries on the functioning of legal doctrines as sources of law in these legal systems are given. At the same time, the views of contemporary individual scholars on these issues are highlighted, and the differences between them are studied. As a result of this analysis, the author's approach is proposed, which eliminates existing controversies. At the same time the theoretical issues of the sources of law are considered.
The author joins the existing position in the legal science of those authors who distinguish the following sources of law: material (or social), ideal (ideological) and formal-legal. The first two groups are differentiated by meaningful criterion, the latter by the form of objectification. Material or social sources of law recognize social relations as their prototype (protopravno), ideological sources of law recognizes justice, and formally legal only those sources of law, which are recognized in a particular legal system (legal family) as official.
In this regard, it is concluded that in the Anglo-Saxon system of law or the Muslim legal doctrine, among others, it is the official source of law, that is, the source of law in a formal legal sense. In the vast majority of countries in the Romano-German legal system, legal doctrine has become part of positive law, and therefore its use as an official source of law has become ancillary, in fact becoming an exception to the general rule.
The need to include legal doctrine as an ideological source of law in the system of law of Ukraine is emphasized. Examples are given of the practice of law-making in the parliament of the country, where the lack of recognition of legal doctrine as a source of law leads to human rights violations. The fact that the ruling elite is not interested in implementing the legal doctrine in the legal system of Ukraine as a source of law is stated. The toxicity doctrine of political responsibility of elected officials (MPs, the President) is appropriately established. Instead, it is proposed to establish the legal responsibility of these officials. It is postulated that it is necessary to include legal doctrine in the sources of Ukrainian law as its ideological source. In this regard, amendments to the procedural codes of Ukraine (CPC, COD, CAS) are proposed to recognize the findings of law professionals as evidence in the case and to extend their competence to all contentious issues of law.
Key words: Legal doctrine, the conclusion of a specialist in the field of law, the conclusion of scientific and legal expertise.
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