The scientific-practical Law Journal
“Almanac of Law” Volume 14 (2023), 434- 441 p.
Havrilyuk S. V. The concept and nature of the occurrence of doctrinal legal errors.
Analyzing the concept and nature of the occurrence of doctrinal legal errors, their classification, the ratio of doctrinal and judicial errors, first of all it is necessary to note that doctrinal errors lead to a serious deformation of the law, because they are determined by the state legal policy and represent philosophical-worldview, theoreticalmethodological, ideological and applied deviations in the legal development of society and the state, which negatively affect the quality of legal life.
In this section, we highlighted the results of the theoretical analysis of scientific research devoted to the study of legal error (including doctrinal), analyzed the nature of the emergence of such a legal phenomenon, ways to overcome it, and, taking into account the causes of the appearance of legal errors, identified measures for their prevention. The main trends in the appearance of legal errors are presented and revealed, which are embodied in specific results, namely, the predicted consequence of a person’s assessment of certain circumstances (in particular, his actions), which he considered to be exclusively legitimate, but which are not.
Measures to prevent and overcome judicial errors are analyzed.
The conducted research showed that the error does not arise by itself, it is the embodiment of incorrect interpretation, understanding of the content of the legal norm in the mind of the subject, an incorrect form of fixing information in it. It is necessary to point out that the idea of legal scholars regarding the substantive meaning of the concept of «error» in legal science is rather ambiguous, which often leads to the inconsistency of the conceptual apparatus of modern legal theory and requires a comprehensive study.
Doctrinal errors are by their very nature non-obvious (hidden). This is due to the fact that the legal doctrine itself «does not exist as a document or other carrier of information through which such information can be obtained», so it is quite difficult to identify a doctrinal error as a deviation from the legal doctrine. Moreover, there is no separate special procedure for their detection and elimination, as well as competent bodies authorized for this. A judicial error in the narrowest sense is understood as a wrong behavior or judgment of the court, which is expressed in violation of the norms of substantive or procedural law, as a result of which the right of the participants in the legal process to judicial protection was violated. At the same time, it should be taken into account that justice is such a complex sphere of human activity that guilt in a judicial error is often conditional.
Particular attention is paid to the signs (properties) of legal errors and the reasons for their occurrence. In particular, it is stated that in modern legal science they are divided into objective – independent of the will and consciousness of law-making subjects, and subjective – generated by the will of law-making subjects, because only professional activity and its results are potential sources of occurrence errors.
The objective reasons for the appearance of legal errors include the constant development of social relations, and the legislator and other legal bodies and institutions do not always keep up with the demands of life. As a result, the current legislation lags behind the dynamics of social relations and becomes erroneous in its individual provisions, parts and even branches, as it does not correspond to social realities. Objective reasons include the contradiction between individual and public interests, and the state does not always find appropriate ways to solve this problem. In addition, the objective reasons include a drop in the intensity of doctrinal developments, including their publication, in particular, in the format of scientific discussions.
At the same time, the appearance of errors is greatly influenced by subjective factors that are determined by personal qualities, in particular, in the format of scientific discussions. Among such reasons in the legal literature are: low level of training of specialists in the field of jurisprudence, insufficient professionalism of legislators, those who apply the law, conflicts of current legislation, gaps, other destructive manifestations; heavy workload of the employee, unfavorable operating conditions, shortcomings in the selection and placement of personnel, a certain scientific bias of representatives of the scientific sphere. Subjective causes of legal errors include violations of legal technical requirements, poor quality work of drafters of legal acts and experts, etc.
In domestic science, the most successful approach to doctrinal error is advocated by N. M. Onishchenko. In her study, the following distinguishing features of doctrinal errors were singled out: 1) they are the result of delusion of the developers of a general or specific doctrine regarding the true properties, theoretical and practical significance of conducted scientific research, generalizations and conclusions; 2) their political, ideological nature; 3) the result of a dialectical search for the truth in the process of target knowledge of the state-legal reality, therefore, these are errors in the meaning process; 4) unintentional introduction of unproven techniques, methods and methods of legal regulation into law-making practice, as a result of which there is a wrong orientation of subjects of legal activity.
Key words: incorrectness, doctrine, legal error, poor interpretation. error, deviation, defect.
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