UA EN

Nkolna K. V.

The scientific-practical Law Journal  Almanac of Law Volume 11 (2020),
175-179 p.

DOI: 10.33663/2524-017X-2020-11-31

Nkolna K. V.  Legal doctrine as a source of legal argumentation in the process of human rights protection

The article is devoted to determining the place of legal doctrine in the system of sources of law and substantiating its importance in the process of protection of human rights as a legitimate basis for legal argumentation. An analysis of current scientific research suggests that today there is no single unified perception of the category of legal doctrine among both legal theorists and law enforcers.

The author points out a number of conflicting points that need to be finally resolved. In particular, there is no understanding from which point an idea, concept or view of law can be considered doctrinal. In this case, it is possible to use the experience of Western jurisprudence, which uses a variety of citation indices, which indirectly testifies to the authority of one or another scientific source, as well as informal lists of authoritative among judges of books of lawyers. Also open today is the question of securing binding reference to a specific scientific source by law enforcement entities in the process of reasoning of the decision.

According to the author, the doctrine is a source of law in every case where law-makers or law-makers use scientific concepts, ideas, views when making legally significant decisions. The Constitution of Ukraine in Art. 129 by declaring that "the judge is independent and governed by the rule of law", in fact, enshrined the obligation to apply legal doctrine in the law enforcement process. In making its decision, a judge, when substantiating a certain legal position, has the right to refer not only to national legislation, but also to use the results of scientific papers, the findings of the Constitutional Court of Ukraine, etc.

At the same time, the problem of recognizing the legitimacy of decisions based on doctrinal approaches is important. Based on the thesis that law is a product of society, an expression of the public perception of justice, then the public will itself will be the primary source of law. No matter which of the official forms of law prevails in a particular legal system, it must be legitimized (recognized) by society, and therefore endowed with a high degree of authority. When analyzing a legal rule, it is necessary to distinguish its textual expression and its actual content. Legal doctrine, as a more dynamic phenomenon than official legal regulation, is able to formulate algorithms for finding the actual content of a rule of law in the context of its application.

Given the tendencies in the evolution of legal regulation in the direction of deformation and decentralization, the phenomenon of legal doctrine can be explained using a differentiated approach to sources of law, distinguishing between "hard law" and "soft law" (soft law). By analogy, legal doctrine can be considered as an informal authoritative source of law, which is the intellectual basis of legal thinking and argumentation, formed within the jurisprudence and represents a set of scientifically sound ideas, concepts, views, which formulate effective models and standards for solving current problems of legal practice.

Keywords: legal doctrine, human rights, sources of law, legal argumentation.

References:

1. Berzhel Zh.-L. Obshchaia teoryia prava. Per. s frants. H.V. Churshukova. Pod obshch. red. V.Y. Danylenko. M: Nota bene, 2000. 575 s.

2. Chernykh Ye. M. Oboviazkovist pravovoi doktryny yak problema metodolohii. Visnyk Natsionalnoi akademii pravovykh nauk Ukrainy. 2016. 2. S. 21-30. Rezhym dostupu: http://nbuv.gov.ua/UJRN/vapny_2016_2_4.  

3. Onishchenko N. M. Pravova doktryna: poniattia, sutnist ta praktychne znachennia. Sudova apeliatsiia, 2007. 3. S. 2126.

4. Postanova Popasnianskoho raionnoho sudu Luhanskoi oblasti v spravi 423/369/17. Elektronnyi resurs. Rezhym dostupu:

5. Richard A. Posner, "The Decline of Law as an Autonomous Discipline: 1962-1987," 100 Harvard Law Review 761 (1987).

6. Semenikhin I. V. Pravova doktryna: poniattia, oznaky, struktura. Problemy zakonnosti, 2016. Vyp. 132.  S. 26-36

7. Schauer Frederick F. Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life . Clarendon Press. 1993. 272p.

8. Yevropeiskyi slovnyk filosofii: Leksykon neperekladnostei. Per. z fr. - Tom tretii. - K.: DUKh I LITERA, 2013. - 328 s.

<< Back

  G Analytics