|Topic 1.1. The nature of the law |
Topic 1.2. The basics types of law understanding
Topic 1.3. The characteristics of the main legal systems
Topic 1.4. The rule of law in Ukraine
As a result of studying this section you will know: - the prerequisites for the origin of the law; - the concept of the social norms and the types of the social norms; - the concept of the legal norms and the structure of the legal norms; - The differences between the legal norm and the rule of law; - the concepts of the law and the main features of the law; - the sources of the law; - the concept of the legal relationship and the structure of the legal relationship; - the main provisions of the offense; - the main provisions of the legal liability; - the basics types of the law understanding; - the problem of the law understanding; - characteristics of the main legal system; - the rule of law in Ukraine. As a result of studying this section you will be able to: - determine the type of social norms; - determine the structure of the rule of law; - identify sources of law; - determine the structure of the legal relationship; - determine the composition of the offense; - determine the type of legal liability.
Topic 1.1. The nature of the law
1.1.1. The social norms.
The relations in a society are governed by certain rules. These rules are called the social norms.
In a broad sense, “the norm” (‘the norm’) is the word of Latin meaning a rule, a model, a guiding principle.
Social norms are generally recognized rules designed to provide standards of conduct for society members.
Social norm – due to social stereotypes. If a person’s behavior does not comply with the generally accepted customs and rules in a community, it is perceived as deviating from the norm.
Hence, social norms are an instrument of coordination and concerted actions of society members to ensure public interest and public order.
There are following types of main social norms: the norms of morality (moral standards); the religious norms; the corporate norms; the norms that have become developed historically and become part of people’s habits; the legal norms.
Norms of morality – the norms of human behavior arising from morality. Their performance is a moral duty; their violation is a source of a moral guilt.
Morality can be defined as the totality of the ideas, views about good and evil, justice and injustice, honor and dishonor, conscience, etc., and the rules of behavior that form on their basis.
The norms of morality are protected by the power of public opinion and inner conviction. The implementation of moral norms is controlled by society or a separate social stratum.
Measures of public influence are applied to violators: moral condemnation, expulsion of the violator from the community, etc.
Customs are rules of behavior that have been historically developed throughout the life of several generations, which as a result of repeated repetition became a habit.
They arise as a result of the most appropriate behavior. Customs have a social basis, which in the future may be lost. However, in some cases, customs may continue to act by force of habit.
Traditions – as the customs, have developed historically, but have a more superficial character (they can develop during the life of one generation).
Traditions are understood as rules of conduct that determine the order and procedure for carrying out any events related to any significant events in the life of a person, enterprise, organization, state and society (traditions of demonstrations, feasts, receiving the rank of officer, solemn farewell of an employee to retirement, etc.).
Ritual is a ceremony, a demonstrative action, to instill certain feelings in people. During the ritual, the emphasis is on the external form of behavior. For example, the ritual of performing a hymn.
Ceremonies, like rituals, are demonstrative actions aimed at instilling certain feelings in people. Unlike rituals, they penetrate deeper into human psychology. Examples: ceremony of marriage or burial.
Business habits – these are the rules of behavior that take shape in the practical, industrial, educational, scientific sphere and regulate the daily life of people. Examples: holding a planning session in the morning of a working day; students meet the teacher standing, etc.
In certain sense, the social norms can be of the following types:
Political norms – these are the rules of conduct governing relations between nations, classes, social groups aimed at the conquest, retention and use of state power. These include the rule of law, programs of political parties, etc.;
Cultural norms or ethical norms. These are the rules of conduct relating to the external manifestation of attitudes towards people (form of treatment, clothing, manners, etc.);
Aesthetic norms are rules of behavior that regulate the relationship to the beautiful, mediocre, ugly;
Organizational norms – determine the structure, procedure for the formation and activities of state bodies and public organizations. For example, charters of public organizations.
Despite their inherent differences, all social norms are closely interconnected and aimed at:
a) Regulation of social relations by establishing certain rules of human behavior in society;
b) Streamlining and organizing social life to ensure public interest and public order;
c) The unity of the assessment of desirable and undesirable behavior for society – often law, religion, and morality prohibit or allow the same line of behavior.
For example, theft by law is regarded as a crime, religion as sin, morality as a bad deed.
Social norms are characterized by:
the uncertainty of the addressee (who is in a specific capacity, in specific conditions provided for by social norms);
universality of application (in acts of social relations, production, exchange, interaction of individuals);
multiple repetition (a criterion of the historical process, indicating the pattern of development).
Hence, the social norms are universal and fix the rules of behavior that affect not a specific individual, but all people in similar situations.
At a certain stage of development of society, legal norms are separated from social norms.
1.1.2. The legal norms
Being social norms, legal norms have all the attributes inherent in social norms but, legal norms are different from other social norms.
A legal norm is a generally binding, formally defined rule of behavior established or sanctioned by the state as a regulator of social relations and is provided by measures of the state coercion.
The features of the legal norm are the same as the law in general, but the legal norm does not have such a feature as systemicity.
There are such specific features of a legal norm:
1. Rule of conduct of a regulatory nature. The legal norm introduces a new rule, fixes the most typical social processes and connections; affects social relations, people’s behavior; is a model of regulated public relations.
2. Generally binding rule of conduct. The legal norm comes from the state, and should be perceived as a guide to action, which is not subject to discussion from the point of view of expediency.
3. General rule of conduct. The legal norm has a general (without specifying a specific addressee – non-personalized) nature, i.e. applies to everyone who becomes a party to relations regulated by the norm. In addition, as a regulator of social relations, the legal norm is characterized by multiple applications.
4. A formally defined rule of conduct of a representative-binding character. The legal norm enshrines the rights and obligations of participants in public relations, as well as legal responsibility (sanctions), which is applied in cases of its violation. By presenting rights to some, the legal norm imposes responsibilities on others. The legal norm acquires formal definiteness after it is stated in laws and other normative legal acts.
5. The rule of conduct adopted in a strictly established manner. The legal norm is issued by authorized entities within the boundaries of their competence and in accordance with a specific procedure: development, discussion, adoption, entry into force, change or cancellation of an action.
6. The rule of conduct, secured by measures of state coercion. The state creates real conditions for the subjects to voluntarily exercise the patterns of behavior formulated in the legal norm; applies methods of persuasion and coercion to the desired behavior, in particular, sanctions in case of failure to comply with the requirements of the legal norm.
The differences between the legal norms and other social norms are most clearly demonstrated by the comparison of the legal norms and norms of morality:
A) the legal norms creating by the state, and the norms of morality by the whole society;
B) the legal norms enshrine in special acts of the state – laws, decrees, decrees, etc., and moral norms contain in religious, literary monuments, in chronicles, sometimes exist orally;
C) the legal norms provide by state coercion or the threat of its application, and the norms of morality provide by public opinion;
D) Violating the legal norms entails the legal liability, and in case of violation of moral norms, public condemnation or measures of a public influence apply.
The differences between the legal norm and the rule of law
The legal norms are the primary element of the law system. The legal norm is the basis on which the subsequent elements, such as the institution of the law and the branch of the law, are based. In fact, the institutions of the law, the branches of the law and the Law as itself are large associations of the legal norms.
Rule of law is a principle under which all persons, institutions, and entities are accountable to laws.
Thus, the legal norms is the primary element of the law, and the rule of law is an invariable guiding principle, for example, the equality of all before the law.
More details on the rule of law will be provided at the appropriate place of this book.
So, the legal norm determines under what conditions it must act, what specific rights and obligations a person has under these conditions, what sanctions the state establishes in case of failure to comply with the legal norm.
The legislator should strive for clarity and clarity in the presentation of the legal norm.
Each person, depending on the circumstances, should be able to navigate which particular legal norm is applied in a particular case, and have a clear understanding of the occurrence of specific legal consequences in the relevant legal relationship, given the reasonable and predictable stability of the legal norm.
The legal norms, unlike other social norms, have:
a) a differentiated internal structure;
b) a hierarchy;
c) a consistency.
Differentiated internal structure, i.e., in the legal norm one can distinguish a hypothesis, disposition and sanction.
A hypothesis (if …) is a part of a legal norm, showing specific life circumstances, in the presence or absence of which this legal norm implements.
The hypothesis not only contains the rule of behavior of subjects of law that the state desires, but also describes these circumstances and gives them the significance of a legal fact.
Disposition (then …) – part of the legal norm that formulates the rule of lawful behavior, or signs of unlawful behavior.
In civil law and in several other regulatory branches, dispositions appear in the form of rules of lawful behavior.
In criminal law and other law enforcement sectors, most dispositions contain features of prohibited acts.
Sanction (otherwise …) is an element of a legal norm that shows the legal consequences of non-compliance with the requirements established in the disposition of a legal norm unfavorable for the offender (state coercion measures, legal liability measures, punishments).
Hence, the legal norm is a generally binding, formally defined rule of conduct guaranteed by the state, reflecting the level of freedom of citizens and organizations, acting as a regulator of public relations.
In aggregate, all legal norms create the law, as itself, aimed at regulating public relations.
1.1.3. The concept of the law
The process of the origin of the law and the state proceeded with their mutual influence on each other and was caused by the same reasons:
1. The needs of economic relations, which developed in the presence of private property, division of labor, commodity production and circulation, the need to consolidate the legal status of commodity owners, to ensure for them stable and guaranteed economic ties, conditions for economic independence;
2. The need to maintain stability and order in society in cases of deepening and exacerbation of social contradictions and conflicts;
3. An organization of public power, separate from the population, with power that is able to authorize customs, establish legal norms and ensure their implementation;
4. Transformation of a person into a relatively independent individual. Law is impossible where there is no division of the community (clan, tribe) into separate subjects. Law is possible where the individual is singled out as a person who is aware of the opportunities (freedoms) that arise in the development of society.
Thus, the origin of the law was associated with:
1) the qualitative complication of production, political and spiritual life of society;
2) the separation of the individual as a participant in social relations with their claims to the autonomy of existence (social freedom);
3) the formation of the state, which needed a new normative social regulator capable of performing the following tasks: a) ensuring the functioning of society as an integral organism of a higher order than primitive society, maintaining order and stability in it; b) to consolidate and ensure the individual freedom of the autonomous personality.
To fulfill these tasks was beyond the power of the normative regulators of the primitive communal system – the norms of customs. This role was assumed by the emerging legal law, the defining feature of which was a state coercion.
There are two ways to form law:
a) by means of norms emanating from the state;
b) by means of norms emanating from society and supported by the state.
Initially, the law was formed by the development of customs into legal customs, which were recorded, combined into special lists.
As a result of this, customary law appeared – a system of norms based on custom, which regulates social relations in a society, in a particular area, or in an ethnic or a social group.
The leading elements of the socio-legal content of law have emerged among different peoples of the world: precedent, religious norm, custom-norm, legal norm, which, in the course of the further development of peoples and states, led to the formation of different national legal systems and their types.
The term “law” is used in the following meanings: social and legal claims (natural rights), positive law (expressed in the system of normative legal acts), law in an objective sense (law as a system of legal norms – labor, civil, family, etc. .), law in the subjective sense (officially recognized capabilities of a person).
In Ukraine, law is understood as a system of the legal norms (rules of conduct) and principles established or recognized by the state as regulators of public relations, which formally fix the measure of freedom, equality and justice in accordance with the public, group and individual interests (the will) of the population of the country and are provided with all measures of legal state impact up to coercion.
Shortly, the law is understood as a system of generally binding, formally defined legal norms established and provided by the state, aimed at regulating public relations.
At the same time, the specific definition of law depends on the type of legal thinking that represents a particular school of law. The variety of definitions of law allows the most complete disclosure of the essence of the law.
Besides in the many thousand-year history of jurisprudence, it has been pointed out more than once that universal definitions should be avoided in matters of law, there is no consensus on the generally accepted definition of law in modern science.
Along with this, the law has distinctive features (properties), and as a system of the law is expressed in the sources of the law, but its legal content is determined by the norms of the law.
So, the law has the following distinctive features (properties), expressing the specifics of the law.
1. Expression of a measure of freedom, an equality and a justice means that law adequately embodies the fundamental human rights and freedoms recognized in the world community.
Law is a measure of freedom and equality of people, established by the state in such a way that the freedom of one does not restrict the freedom of another.
A complete freedom cannot be achieved, but one can be free to the extent that others are free.
2. Normativeness reveals the meaning and purpose of law. The normative nature of law introduces elements of unity, fundamental sameness into public life – law acts as a general scale, a measure, a regulator of people’s behavior.
With the help of norms, the law regulates various social relations, serves as an instrument for implementing the policy of the state, as a means of organizing its diversified management and other activities.
Normativeness has one essential feature: the law is expressed in normative generalizations (general permissions, general prohibitions, general obligations), which establish the limits of the freedom that achieved, the boundaries between freedom and non-freedom at a certain stage of a social progress.
3. Formal definiteness of the law means clarity, unambiguity, conciseness of formal legal prescriptions expressed in laws, decrees, regulations, etc.
This is achieved with the help of legal concepts, their definitions, the rules of legal technique.
That is why the subjects of the law clearly know the boundaries of a lawful and an illegal behavior, their rights, the freedoms, the duties, the degree and the type of responsibility for the offense.
The expression of the norms in the laws and other normative acts, the establishment of a formal equality is the main sign of the formal certainty of the law.
4. The systemic nature of law lies in the fact that law is not just a set of principles and norms, but also their system, where all elements are connected and agreed.
The systemic is introduced into the law by legislation. Only a systemic, consistent law, expressing its essence through principles, is capable of fulfilling the tasks facing it.
Currently, in Ukraine, the most important and urgent task is to restore and strengthen the systemic nature of the law, since the inconsistency of regulatory legal acts undermined the systemic links between legal norms.
5. The volitional nature of law, the expression of social, group and individual interests in it means that the will is manifested and embodied in law, the content of which is interest.
The law accumulates the public, group and individual will of citizens in their combination, consent and compromise.
The Will permeates human activity in all, including the legal, spheres of a life.
Understanding the will in law excludes the reduction of a law to an instrument of state violence, a means of suppressing individual will by the state.
Ideally, the state, through its legislative bodies, “raises into law” a public, a group and an individual interests that correspond to the principles of a justice, a freedom, a democracy, an equality, and a humanism.
6. The universality of the law is expressed in the fact that the established rules of conduct are general and binding for the entire country.
The universality of the law is given by the fact that it expresses the agreed interests of the participants in regulated relations, that it has a normative character.
7. Guarantee and security of the law by the state, up to coercion, testifies to the fact that the state power, the state as a whole, supports the general rules, which are recognized by the state as legal. Not all norms of the law are respected and fulfilled voluntarily, due to inner conviction.
A significant part of the population obeys the requirements of legal regulations only because the state is behind the law.
A state protection of the norms of law includes state legal coercion, various organizational, technical, educational and preventive measures of state bodies aimed at observing and fulfilling the legal norms by citizens.
Competent state bodies may apply measures of appropriate legal liability to violators of the requirements of the law.
Thus, the state ensures the universality of the norms of law.
It is necessary to distinguish between the concept of the law and the content of the law.
The content of the law is revealed through the specific historical and logical content of law.
The specific historical content of law is diverse, it corresponds to history, religion, culture, national identity, etc. The logical content of law presupposes, regardless of historical and other meanings of law, the possibility of applying an equal scale to unequal people, i.e. ensuring formal legal equality of unequal statuses of persons.
Freedom is the main content of the law, concluded in the form of a legal norm, which in modern conditions presupposes formal legal equality of all subjects of law.
Public law and private law.
Public law and private law are traditionally considered to be cross-cutting lines of legal development of the legal system (legal systems) of continental Europe and some other countries whose legal systems are similar to continental European.
Public law is a subsystem of law that regulates relations, related to the activities of public authorities (state power and local self-government).
Private law is a subsystem of law that regulates relations between subjects of law that are not directly related to public authority. Private law relations are related to the realization of the interests of individuals which are recognized and protected by law (private interest).
The sources of the law.
The Law as a system of the law finds expression in the sources of the law. The term “a source of the law” refers to the external form in which an objective law is expressed (the totality of all norms of law, the system of law).
In this sense, the sources of the law are: a legal custom, a normative agreement, a judicial precedent, a normative legal act and a legal doctrine.
Legal custom is an act-document containing a rule of conduct that has developed due to repeated application for a long time, which is sanctioned by the state and provided by the force of a state coercion.
The state does not recognize all the customs that have developed in a society, but only those that are of the greatest importance for society, meet its interests and correspond to the historical stage of its development.
The legal custom is the most ancient source of law, historically and actually preceded the law.
Normative agreement – is an agreement (one of the parties of which is the state or a part of it), from which generally binding rules of conduct (norms of law) follow. A normative agreement can be international, or it can be an agreement within one state, for example, between a federation and its subjects.
Legal (judicial) precedent – an act-document containing new rules of law as a result of the decision of a specific case by a judicial or administrative body, which is given generally binding significance when solving similar cases in the future.
It is one of the leading sources of law of the Anglo-American type of legal systems – England, USA, India, etc.
Normative legal act is an official document-document of the competent authority containing the rules of law provided by the state (constitutions, laws, presidential decrees, resolutions, etc.)
It is the main legal source of law in most countries, especially the Romano-Germanic type of legal systems – France, Germany, Italy, Spain, Ukraine etc.
Legal (law) doctrine – scientific works on legal topics. It can become a source of law if it is sanctioned by the state. For some time, legal doctrine was of great importance as a source of law in the system of Roman law.
1.1.4. The legal relationship
The law is a regulator of relations in society. But only part of the relations in society are regulated by means of the law. This part of relations in society, regulated by the law, are the legal (law) relations.
For example, inviting guests to dinner, the hostess expects them to arrive. But the relationship that has arisen about dinner is not a legal relation.These relationships generate expectations only, not the legal rights and the legal obligations.
Therefore, if the guests do not come, they cannot be held legally liable, since the relationship regarding the dinner is not regulated by the legal norms and, therefore, is not a legal relationship.
On the other hand, if the hostess bought the new stove for cooking dinner, and the stove turns out to be a non-working stove, then such a relationship becomes a legal relationship, since they are governed by the legal norms in the field of product quality and the consumer protection.
Hence, the legal communication of people and legal entities occurs through interrelated legal rights and legal obligations, since the legal right of one presupposes the legal obligation of the other.
Besides, the participants in a legal relationship (subjects of law) have the opportunity to exercise their rights and obligations both in relations with other persons and outside of them.
Thereby, there are two ways to implement the rights and the obligations:
1) the use by the subject of his rights and the performance of his duties when he does not enter into relations with other persons. For example, the owner can own, use and dispose of his property at his own discretion;
2) the use by the subject of his rights and the performance of his duties when he does enter into relations with other persons. This is due to the impossibility of exercising rights and fulfilling obligations without appropriate actions on the part of other subjects of law (for example, exercising the right to purchase a car requires a relationship with a car dealership).
There are the following main features of legal relations:
1. Participants in the legal relations (subjects) are linked by legal rights and legal obligations.
2. Legal relations are the legal form of various social relations (economic, labor, family, etc.)
3. Legal relations arise, change and terminate, as a rule, on the basis of the legal norms.
For example, the purchase of a car by a citizen K., as a life circumstance and a legal fact, leads to the emergence of a legal relationship.
The object of this legal relationship is a car.
The participants in this relationship are K. and the car dealership.
The legal content of this legal relationship is the legal rights and legal obligations of its participants.
Thus, citizen K. is obliged to pay for the cost of the car. Citizen K.’s right is the right to demand a car. On the contrary, the car dealership has an obligation to provide citizen K. with a car. The right of the car dealership is the right to demand payment of the cost of the car.
Hence, the actions of citizen K. as a legal fact led to the emergence of a property legal relationship. As a result of the implementation of this legal relationship, citizen K. acquired the ownership of the car.
If citizen K. leases his car, then a legal relationship arises regarding the use of someone else’s property. If citizen K. sells his car, then this legal relationship is terminated.
The composition of legal relations.
To understand specific legal relations, the following legal structure is used – the composition of the legal relations. The composition of the legal relationships is the structure of any legal relationship that allows us to evaluate and analyze any legal relationship.
In addition, the composition of a legal relationship can be defined as a set of the elements necessary for the emergence, the existence and the termination of a legal relationship.
Thus, there is the following structure of legal relations.
1. The participants of the legal relations or the subjects of the legal relations are persons who participate in a legal relationship and have the legal rights and the legal obligations. Such persons can be: the individuals, the legal entities, the state, etc.
A participant of a legal relationship can be a person only who has the ability to be a subject of law. This ability is called legal personality. Legal personality means the right of a person to have the right as such.
Legal personality is subdivided into legal capacity and legal capability.
For example, the state of Ukraine recognizes for all citizens of Ukraine the ability to have rights from the moment of birth to the moment of death. This ability to have rights and to acquire obligations is called legal capacity. Shortly, all persons shall be able to have rights and obligations (legal capacity).
A person’s legal capability shall mean his/her capability to acquire rights by his/her actions and to exercise them independently as well as the capability to create obligations by his/her actions, perform these obligations independently and bear responsibility therefore in case of non-performance thereof.
Thus, the legal capacity inherent in all citizens from birth can be realized through legal capability, which comes from a certain age or under certain conditions.
For example, a grandmother left the house as a legacy to her granddaughter. Thanks to legal capacity, the granddaughter can be the heir and inherit the house. But the granddaughter will not be able to manage the house, pay bills and make transactions regarding the house until she reaches the age of majority. Until that moment, a guardian or trustee will act on behalf of the granddaughter, realizing her legal capacity.
2. The object of the legal relationship – a tangible or an intangible good (benefit) for which the subjects enter into a legal relationship.
The main objects of legal relations may be the following:
1) natural objects, ie the earth, its subsoil, atmospheric air,
water, forest and other natural resources; they are natural, not created by humans, but used by them to meet their needs;
2) things, including money and securities, other movable and immovable property. Objects of the material world satisfy various human needs and act as objects of property relations (for example, in purchase and sale, gift, exchange, inheritance);
3) intangible benefits (personal and social): life, health, honor and dignity, freedom, inviolability of home, human and civil rights, constitutional order, public order and security, environment, good governance, etc. They are recognized as important for society and people, as a result of which they are protected by the law;
4) results of actions, including services and results of work.
They are provided in the areas of management, consumer services, economic, cultural, educational and other areas (eg, social, administrative, financial, household);
5) objects of intellectual property rights (literary and artistic works, computer programs, scientific discoveries, trademarks, etc.). Various legal relations arise regarding their use and transfer.
3. The legal content of the legal relationship – the legal rights and the legal obligations of the participants (the subjects) of the legal relationship.
The legal rights or the subjective rights.
The realization of interests becomes possible through endowing the individual with subjective rights. These subjective rights, on the one hand, make it possible to satisfy the legitimate interests of the individual, and on the other hand, the norms of law establish the limits of the actions of the individual, when he realizes his own interests. So, The exercise of the legal rights of one person must not violate the rights of the other.
The legal obligation.
A legal obligation is a measure of proper human behavior established by the legal norm. The legal obligation rests with the obligated person, who must choose the option of behavior provided for by law – to carry out certain actions or refrain from them.
Legal obligation includes:
1) the need to take certain actions or refrain from them;
2) the need to respond to the legal requirements of the authorized person;
3) the need not to prevent the authorized person from using the benefits to which he is entitled;
4) the need to take responsibility for non-compliance with legal obligations.
4. The jural facts – a life circumstance with which the law connects the emergence, the change or the termination of the legal relations.
There are the following main types of legal facts:
1) the legal events – these are legally significant life circumstances, the occurrence of which does not depend on the will of man.
For example, a flood is an event that, as a rule, does not depend on the will of a person, but serves as the basis for the emergence of legal relations.
Thus, the authorized body of state power adopts an appropriate decree on the supply of food and basic necessities to persons affected by flooding.
Financial assistance and temporary housing can also be provided for flood victims. Hence, an event that does not depend on the will of a person serves as the basis for the emergence of various legal relationships: financial, housing, etc.
2) the legal actions – are legally significant acts of a person. The legal actions depend on the will of a person. The most common example of a legal action is the contract.
Legal actions are classified into legitimate actions and illegal actions.
Legitimate actions comply with the norms and principles of law, illegal actions contradict the norms and principles of law.
The most common example of an illegal action is the offense.
1.1.5. The offense
The offense is an act of a person (natural or legal), which is committed by action or inaction.
For example, deliberately stabbing the chest with a knife is an action. Moreover, the offender is aware of the wrongful nature of his actions, foreshadows the onset of harmful consequences and wishes for the onset of these harmful consequences.
On the other hand, there is a general obligation to provide assistance to anyone who needs such assistance as a result of being in a life-threatening condition.
Failure to provide assistance to a person in a life-threatening condition is an example of an offense of inaction.
The thoughts, an emotional experience or even intentions until they are realized in the action or the inaction are not an offense.
An offense as an unlawful behavior always violates a legal norm that prohibits a public dangerous act.
To recognize an action or inaction of a person as an offense, at least one of the main signs must be present – public danger.
Public danger is the essence of the offense, which consists in causing damage to the legitimate interests of the individual, the society and the state.
For example, the legitimate interests can be life, health, property, rights and freedoms of citizens, the established legal order, etc., which are harmed to more or less.
A public dangerous act is not only an act that caused damage, but one that created a threat of possible potential damage.
Besides, the offense has a consciously volitional nature, i.e. at the time of commission it depends on the will and consciousness of the offender.
Hence, a person’s mental attitude to an act or omission, which is defined as guilt, is important for understanding of the offense. Thus, causing damage in the absence of guilt is not considered as an offense.
The offenses according to the degree of public danger are divided into the crimes and the misdemeanors.
In general terms, it seems possible to formulate the following definition of an offense:
An offense is an illegal (unlawful ) socially harmful culpable act (action or omission) of a delictual person, for the commission of which a person may be held to legal liability.
The offenses (delictum) according to the degree of public danger are divided into the crimes and the misdemeanors.
The main features of the offense:
1. Misbehavior. There are two main criteria for distinguishing lawful behavior from unlawful behavior: public damage (guilt) and public danger (crime). For example, socially harmful behavior is absence from the workplace without good reason during the day, and socially dangerous behavior is an encroachment on a person’s life.
The legal aspect of damage is expressed in the violation of subjective rights and legal obligations or in opposition to their implementation. The material aspect of damage is to cause the participant a legal relationship of material damage or moral damage.
Unlawful, illegal behavior is contrary to the legal norms. Also, this behavior is carried out contrary to the law. Such behavior is the arbitrariness of the subject and violates the prohibitions specified in laws and regulations. Also, this behavior is a failure to fulfill obligations arising from a legal act or contract concluded on the basis of law.
2. Consciously volitional behavior is determined by the human psyche, which at the moment of committing an offense is under the control of will and consciousness, is carried out consciously and voluntarily.
The absence of free expression of the will is a legal condition according to which an act is not recognized as an offense, even if it had harmful consequences.
An offense is only the unlawful act of a delinquent person (minors and the mentally ill are not considered as delinquent).
Thoughts, intentions, beliefs that did not appear outwardly are not recognized by the current legislation as the object of persecution until they have turned into illegal acts.
The practice of persecution for dissent (opposition) is a manifestation of the repressive nature of the totalitarian regime in the state.
3. Сulpable act is an action that expresses the negative internal attitude of the offender to the interests of people, caused by his action (or inaction) damage to society and the state, and contains proven guilt. Guilt is a person’s mental attitude to his action (inaction) and its consequences, expressed in the form of intent and negligence.
The absence of these features does not allow to consider the act as an offense. Thus, causing damage in the absence of guilt is not considered an offense.
The composition of the offense.
The composition of the offense is formed by the following elements:
1. The object of the offense is public relations protected by law, at which the unlawful act is directed.
The object of the offense can be social and personal values, which are damaged by the unlawful act.
2. The subject of the offense is the person who committed the offense.
3. The objective side of the offense, which characterize the offense as a certain act of external behavior:
a) the act as an act of volitional behavior;
b) the harmful result of the act. It causes material or non-material harm to society or its members;
c) a causal relationship between the act and the result, the establishment of which is very important when considering criminal cases.
4. The subjective side of the offense. It is formed by guilt, which means the psychic attitude of the subject to his unlawful behavior and to its consequences. There are two forms of guilt: intent and negligence.
In some cases, the optional elements of the subjective side of the offense may be its motive and purpose.
The motive is the motivation that guides the offender during the commission of the offense.
The goal is the idea of the subject about the result of the offense being committed.
The types of the offenses.
Offenses are classified according to two main features: the branches of law and the degree of public danger.
By branches of law, the offense is divided into criminal, administrative, civil and disciplinary.
But this list is not exhaustive. Offenses may occur in other areas of law, if their features are fixed in the relevant legal norm. Thus, offenses can occur in the regulation of constitutional, tax, commercial law, areas of international law and so on.
According to the degree of public danger, offenses are divided into criminal – crimes and criminal misdemeanors, as well as other misdemeanors, which can be administrative, civil or disciplinary.
An offense is the basis for bringing a person to legal liability.
1.1.6. The legal liability
Legal liability is a specific type of social liability associated with the state. The state, performing its law enforcement functions, has the legal possibility of using state coercion or other restriction of the rights and freedoms of a person or a legal entity.
The only basis for legal liability is the commission of an offense. Any offense must be provided for by the legal norm, which establishes the measure of liability for the offense.
Legal liability can be defined also as a legal relationship in which the state has the right to apply certain measures of state coercion to the offenders who have committed offenses, and the duty of offenders to endure deprivations or restrictions provided for by the sanctions of the rule of law.
In other words, legal liability is the reaction of the state to the offense, which is to apply to the guilty person the state coercion measures of a personal,
property or organizational nature.
For example, an adverse personal consequence for the offender is the imprisonment of the offender. Adverse property consequences for the offender is the imposition on him of the obligation to pay a fine. The negative consequences of an organizational nature for the offender is the revocation of the license to engage in a certain type of activity.
The social purpose of legal liability is the protection of public relations. Legal responsibility performs the following basic functions:
a) law enforcement function;
b) educational function.
The state exercises its right to apply legal liability measures in three stages:
1) the prohibition of socially dangerous misconduct and the establishment of the necessary measures in the sanctions of legal norms;
2) individualization of sanctions for specific offenders;
3) ensuring that offenders are incurring appropriate deprivation.
The main features of the legal liability:
1) Mandatory presence of an offense as the basis for its occurrence.
2) The official nature of state condemnation (censure) of the behavior of the offender.
3) Always has adverse consequences for the offender: property (material), moral, physical,organizational, political and others.
4) The nature and extent of the offender’s deprivation are established in the sanction of the legal norm.
5) Use of mechanisms of state coercion.
6) The imposition of hardships on the offender, the application of state-coercive measures to him is carried out in the course of law enforcement activities by the competent state bodies in the manner and forms strictly defined by law.
Principles of legal liability:
1. Legality – a person can be brought to legal responsibility only by competent authorities in a strictly prescribed manner and on the grounds provided by law.
2. Justice – responsibility is borne by the one who committed the offense.
The type and measure of punishment depend on the severity of the offense. A law that establishes or strengthens liability is not retroactive.
If the harm caused by the violator is reversible, legal responsibility must ensure that it is recovered.
3. The inevitability of the onset of legal responsibility – no one can be exempted from responsibility and punishment under any pretext without legal grounds.
4. Individualization of punishment – provided by the possibility of choosing various means of legal influence, taking into account the nature and degree of public danger of the committed unlawful act, the personality of the perpetrator, the circumstances provided for by law as mitigating or aggravating responsibility, etc.
5. Responsibility for guilt – responsibility can arise only if there is guilt of the offender, which means the person’s awareness of the inadmissibility (unlawfulness) of his behavior and the consequences caused by it.
Types of legal liability:
It is necessary to keep in mind that legal liability is established for the commission of a specific offense by a specific person, i.e. it has an individual character. This principle is ensured by the possibility of applying the type of legal liability depending on the degree of social danger of the offense.
There are two main types of liability: penalty (punitive) – the purpose is punishment for the offense, and recurring – compensation for damage caused by the offense (property, moral).
Depending on the type of offense and the method of liability:
Criminal liability – is imposed for the crime and only by the court in the form of criminal punishment.
Administrative liability – for administrative offenses, imposed by various administrative bodies (administrative commission, customs service, border service) in the form of arrest, fine, deprivation of special rights, etc.
Disciplinary liability – for disciplinary misconduct within the scope of official activities imposed by the chief, who is in charge of the offender. For example, the disciplinary liability of a lawyer (Article 16 of the Law of Ukraine “On Advocacy”).
Civil liability – is imposed for civil non-contractual violations that cause material damage or non-pecuniary damage to the victim, as well as for breach of contractual obligations (fines, penalties, damages). It is based on the principle of equivalence, full compensation for damages, imposed by the courts or voluntarily implemented by the violator: the fine is paid voluntarily, the damage is compensated.Liability of employees occurs for material damage caused to the enterprise, institution in the performance of official duties, has a limited nature.
Topic 1.2. The basics types of law understanding
Law understanding is the knowledge of the law, its perception (assessment) and attitude towards it as an integral social phenomenon.
The subject of law understanding is always a specific person, therefore, law understanding is always subjective, original and may not coincide in a person, a group of persons, or in whole social classes.
The object of law understanding is law as a social phenomenon, as a result of human life, as the law of a particular society, taken in the aggregate of individual elements of the system of law (norms of law, legal institutions and branches of law).
The content of law understanding is the subject’s knowledge of his rights and obligations, specific and general legal prohibitions, permissions and their assessment as fair or unjust.
All existing doctrines of law, at their core, form a certain type of law understanding and are called doctrines of law or types of law understanding. This is due to the fact that there is no unambiguous doctrine of law that would satisfy everyone.
By systematizing various types of legal thinking, one can single out idealistic and materialistic approaches to the study of law, as well as note certain scientific schools of law – normative, natural-legal, positivist, psychological, sociological, etc.
It is necessary to take into account the historical conditions of the functioning of law, their compliance with certain values, stability of legal norms and their ability to adapt to changing social relations.
Modern concepts of law understanding can be reduced to following main approaches: natural law, positivism, sociology.
1.2.1. Natural law. It acquired its complete form during the period of the bourgeois revolutions of the 17th – 18th centuries. Representatives of this trend were Hobbes, Locke, Montesquieu, and others.
The main thesis of this doctrine is that, along with the legal norms established by the state, law also consists of a set of inalienable rights that belong to a person from birth.
This theory correctly points out that the laws may contradict the law and be unlawful, and therefore they must be brought into conformity with the law. In the first place in law are put forward such evaluative concepts as freedom, equality, justice, etc.
The positive in this theory is the separation of legislation and law, i.e. along with positive (positive) law, there is a genuine unwritten law, which is understood as a set of inalienable and natural human rights.
The source of law is not legislation, but human nature and its inherent moral qualities.
Thus, within the framework of this theory, law and morality are identified. But such an understanding of law as abstract moral values reduces its formal legal properties, this understanding is associated not so much with law as with legal consciousness.
1.2.2. Historical School of Law. It received the greatest development at the end of the 18th – beginning of the 19th centuries. in the writings of representatives of the German historical school of law (Hugo, Savigny, Puchta, etc.).
This school arose as an antithesis to natural legal doctrine. Representatives of this trend regard law as a historical phenomenon that develops gradually, spontaneously from the “depths of the national Spirit”.
Therefore, the German historical school adhered to conservative views and was ideologically directed against the universalism of Roman law, expressing a desire to defend the originality of national forms and content of law.
The well-known ideological formula of this school was the thesis that “The spirit of the people determines the rights of the people.” Law here acts in the form of historically established rules of conduct, laws are derived from customary law. Legal customs are recognized as the main source of law.
The historical school of law denies the category of human rights and pays, first of all, attention to the national, cultural and historical features of law.
This theory emphasized the naturalness of the development of law, the dependence of the legislator on the convictions of the nation and on traditional legal and regulatory attitudes. The reassessment of legal customs to the detriment of legislation led to an unjustified disregard of the formal legal and natural legal principles. At the same time, the advantage of this teaching was the development of evolutionary, organic development of law.
1.2.3. Normative theory of law (positivism). This theory became widespread in the XX century. Representatives of this trend were Stammler, Kelsen, and others. Within the framework of this doctrine, the state was identified with law, with a legal form, with the result of the action of law. The law itself was a set of generally binding norms containing rules of proper behavior.
The universality of law was derived not from morality, but from the authority of the supreme norm, as a norm emanating from the sovereign (state).
At the same time, the norms of law are lined up in a certain pyramid, at the top of which is the main, supreme norm. All other norms, as it were, take power from it. The basis of the pyramid of norms is individual, law enforcement acts, first of all, decisions of courts, contracts, instructions of the administration, which must comply with the basic norm.
Each subsequent norm takes its definite place in this system in accordance with the principle of legal force.
In this theory, it was pointed out such essential qualities of law as normativity, universality, legal force, formal certainty, and the security of the action of law by the coercive protection of the state.
The disadvantage of this understanding is the consideration of law separately from economics, politics, and the social system.
Within the framework of this doctrine, in fact, the state and law are identified, and the state is considered from the point of view of the organization of law and order, i.e. under the state is understood, first of all, the state regime. An appeal mainly to the formal side of law ignores its substantive side, first of all, the rights of the individual.
The role of the sovereign is being made absolute, i.e. the state in determining the substantive characteristics of law.
Under the law is understood in the main – the order of proper behavior, since the law according to Kelsen belongs to the sphere of the proper, and not of being. It has no legal force outside the scope of the norms of obligation, and its strength depends on the consistency and harmony of the system of law.
Representatives of this trend sought to study “pure” law, free from moral and other value characteristics.
The broad possibilities of the state to influence society and its development are recognized, and the role of the latter, including in the law-making process, is underestimated.
1.2.4. Marxist theory of law. This theory took on a veiled form in the 19th and 20th centuries. in the works of Marx, Engels, Lenin, and others. Law here was considered as the will of the ruling class raised to law.
Law, like the state, is interpreted as superstructure in relation to the economic structure of society.
The content of law is understood primarily as its class essence.
The Marxist theory is characterized by the consideration of the concept of law in close connection with the concept of the state, which not only forms it, but also supports it in the process of implementation.
In the content aspect, there is a clear separation of the lawful and the illegal.
The role of class principles in law is exaggerated to the detriment of general human principles, the life of law is considered within the limited framework of a historical, class society, rigidly conditioned by material and production factors.
Thus, in law, first of all, the class will receive state-normative expression.
Formal aspects of law (lawful, illegal) are exaggerated to the detriment of the substantive, general social principles of law. The content of the law is of a narrow class nature.
1.2.5. Psychological theory of law. This theory became widespread in the XX century. Representatives of this school are Ross, Reisner, Petrazhitsky, and others.
Law is considered here as a set of elements of the subjective human psyche.
The concept and essence of law is derived not through activity, but through psychological regularities – legal emotions of people, which are of an imperative-attributive nature, i.e. are experiences of a sense of entitlement to something (attributive norm) and a sense of obligation to do something (imperative norm).
The psyche is declared to be a factor determining the development of society. All legal experiences are divided into two types – experiences of positive (established by the state) and intuitive (personal-autonomous) law. Intuitive law, in contrast to positive, acts as a real regulator of behavior and is considered as a valid law.
This concept of understanding law distinguishes between formal and informal law. Official law – established by the state and provided by it. Informal law is devoid of government interference, but still acts as a law, i.e. along with written law, unwritten law (the sphere of psychological experiences) is derived. This means that legal norms can be created in addition to the state as a result of the mental activity of individuals and the social whole. From the point of view of its essence, law is considered as an intuitive phenomenon that corresponds to the emotional sphere of a person. State coercion here does not act as an essential feature of law.
The source of law is declared to be psychological reality, and legislative activity and legislation are derived from the emotional and legal sphere. Within the framework of the psychological theory of law, the role of legal consciousness in legal regulation is growing. This theory had a great influence on the development of criminal law, criminal procedure and applied legal sciences (criminology, forensic science, forensic psychiatry, etc.).
1.2.6. Sociological theory of law. This theory was most widespread in the XX century. in the works of Ehrlich, R. Pound and others. It is based on empirical research, and is associated with the development and functioning of legal institutions.
The law here means primarily legal actions, legal practice, the application of law, the rule of law.
Thus, the law acts as the order of social relations, expressed in the activities of the subjects of legal relations.
The main thing for this direction is the study of the real legal order, and not the prescriptions emanating from the legal norm, i.e. first of all, “living law” is studied. Law and law are separated here. First of all, judges formulate “living law” in the process of jurisdictional activity, they “fill” the laws with law, making appropriate decisions.
This understanding of law is close to the doctrine of common (Anglo-Saxon) law and was directed to a certain extent against the conservatism of the German historical school of law.
The varieties of this legal thinking are the social concept of law and the solidarity doctrine of law, in which law is viewed as a means of achieving social balance and cooperation of various social strata in exercising power and transforming public life.
At the same time, attention is focused on the regulatory, social functions of law as a means of resolving possible social conflicts.
The theory contributes to the orientation of the law towards general democratic values.
1.2.7. Modern legal thinking is associated primarily with two common approaches to understanding of law: in a broad (philosophical) and narrow (narrow-normative) sense.
Within the framework of a narrow-normative approach, law is viewed as a system of formally defined, generally binding norms, sanctioned by the state and ensured by its coercive force.
The followers of this approach in jurisprudence recognize, first of all, the practical-utilitarian value of law, i.e. the possibility of real use of law in the regulation of public relations.
Supporters of the “broad” understanding of law proceed from the fact that law is not identical with legislation, this approach is primarily aimed at understanding the essential (philosophical and value) basis of law, and at studying the meaning of law, general legal principles.
Law is considered here as a form of freedom, for example, in the libertarian theory of law: law as a form of freedom, formal freedom.
The concept of law includes such legal elements as legal relations, legal consciousness, subjective rights. The source and purpose of law are social relations that correspond to the natural-legal principles of justice.
Both approaches agree in understanding of law as a set of norms established and protected by the state.
1.2.8. The problem of modern law understanding
The scientific knowledge of law aims at two interconnected things: a) obtaining a true knowledge of law and b) an identification of law’ patterns in all its manifestations.
Traditional doctrinal legal understanding is limited by the categorical apparatus and problems of epistemological nature.
On the one hand, there is a long-standing hopeless controversy about the choice between the rule of law or judicial discretion.
On the other hand, there is an endless search for criteria for the optimal structuring of law by branches of law.
With that there are false attempts to identify the dominant branches of law or attempts to create complex branches of law as a way out of the theoretical impasse.
However, the law as itself, as a general one, is trying to reach infinity. Hence, arising the potential for the existence of an infinite number of the law’ concepts.
As a result, the attempts to create a traditional comprehensive concept of the law from the standpoint of a modern understanding of law, which essentially boils down to confrontation along the lines of Herbert Xart – Ronald Dworkin, are doomed to failure.
Law understanding is determined by at least two things – the permanent self-identification of society and the law itself as a general.
Through the understanding of law, society constantly identifies itself at each stage of its development and the permanence of such identification makes it difficult to create a comprehensive unified concept of law.
The age-old antagonism between legal positivism and natural law will exist until it seems correct to assume that the rules of law and court decisions are two parts of one whole.
After all, law as a general is a being of law and has no direct impact on relations in society and human behavior, just as the concept of legal entity has only an indirect relationship to the activities of a particular commercial company.
Law understanding necessarily contains the concept of law as a generality, law as a special and law as separate.
The idea of law as a generality – justice and freedom, through legal regulation, as a feature, is embodied in the rule of law as a separate.
Hence, the idea of law and law, as itself, as a general, can not be realized by a simple mechanical transfer from the realm of abstraction to everyday life.
Law as an abstract concept must necessarily go beyond abstraction and become law as special and reality – legal certainty, which in fact is no longer a law, but contains a law in itself.
In order to achieve legal certainty, the law in some way abandons itself and finds its expression in the legal regulation – the current legislation or court decisions.
Significant differences between the normative legal act (general prescriptions) and judicial precedent (individual prescriptions) do not affect either their essence as positivity, nor their ultimate goal – the regulation of social relations in order to establish law and order.
After all, the law and the justice are aimed at the same subject.
Fixing the transformation of law from an abstract idea into a real legal regulation is the starting point for understanding the movement of law.
Topic 1.3. The characteristics of the main legal systems
Today, on the legal map of the world, there are two legal systems that have developed historically over the centuries: the Romano-Germanic legal system and the Anglo-American legal system. They are classical legal systems, and it is they that have a decisive influence on the legal systems of individual states.
1.3.1. The Romano-Germanic (normative) type of legal system
The Romano-Germanic (normative) type of legal system is more common than Anglo-American. It includes the national legal systems of France, Belgium, Holland, Italy, Spain, Germany, Austria, Switzerland, Scandinavian countries. The legal systems of the Slavic countries, in particular Ukraine, are related to this particular type of legal systems. The geography of the Romano-Germanic type of legal system currently extends beyond Europe: Latin America, part of Africa, Japan, Indonesia.
In its formation, the Romano-Germanic legal family went through three main stages:
1) the era of the Roman Empire – XII century. not. – the emergence of Roman law and its decline in connection with the demise of the Roman Empire (476 AD), the dominance in Europe of archaic methods of dispute resolution – duels, ordeals (trials), witchcraft, etc., ie the actual absence of law in the modern sense this word;
2) XIII-XVII centuries. – the revival of Roman law, its spread in Europe and its adaptation to new conditions, the independence of law from royal power;
3) XVIII century. – to this day – the codification of law, the emergence of constitutions – Poland and France (1791) and sectoral codes – the Civil Code of France in 1804. (Napoleon’s Code), the Civil Code of Germany (1896 p.), The creation of national legal systems.
Characteristic features of the Romano-Germanic type of legal system:
1) This type of legal system originated and developed in continental Europe. For the countries of this region were common stages of development of society – from barbaric to civil, as well as stages of development of the state – from the patrimonial monarchy to the constitutional state. In addition, all the social and political systems of continental Europe were strongly influenced by the Roman social and legal order;
2) common sources of law of the Romano-Germanic type: Roman law, which was received by all legal systems of the continent since the XI century; customary law of the German and Slavic tribes (“barbaric truths”). From Roman law were adopted the division of law into private and public, the construction of most property and personal rights and legal relations (property, marriage, contract, will);
3) a clear, coherent system of sources of law, among which the main form is a legal act. All other forms of law are used only in cases stipulated by law. Normative legal acts, as a rule, are built according to the following hierarchical scheme: constitutional (organic) laws – ordinary (current) laws – bylaws.
Common codified regulations;
4) the law is clearly structured, namely: there is a division into public and private, industry and institutions. Among the branches of law, constitutional, administrative, civil, criminal, as well as civil procedural and criminal procedural law are considered basic;
5) the legal terminology of the countries of continental Europe is unified and is mainly borrowed from Roman law (contract, vindication, deposit, easement, etc.);
6) the leading role in law-making belongs to the legislator, as a rule, to the representative body of state power;
7) the dominant legal doctrine – the doctrine of the rule of law. First, it means that the law has the highest legal force and all other regulations must be brought into line with the law, and in case of conflict with the law, any act can be challenged or repealed. Secondly, according to the doctrine of the rule of law, the law enforcer is obliged to act strictly in accordance with the law, without creating new legal norms;
8) substantive law has a decisive influence on the development of procedural law. Procedural branches of law are considered as entities that “serve” the rules of substantive law;
9) in the process of developing new legislation and in the training of lawyers a prominent place belongs to theoretical constructions.
At this time, legal systems belonging to the Romano-Germanic type borrow some features of Anglo-American law. In particular, the role of procedural law is increasing, case law and legal precedents are being used more widely.
1.3.2. The Anglo-American (precedent) type of legal system
The Anglo-American (precedent) type of legal system includes the national legal systems of England and Wales, the United States, Canada, the Commonwealth of Australia, New Zealand, and some other countries. The influence of English law extends to India, Nigeria and other countries of the Commonwealth.
The British legal system has gone through four main stages in its formation:
1) to 1066 (the Norman conquest of England) – from the essence of common law; the main source of law were local customs, different for each area;
2) 1066-1485 pp. (from the Norman conquest of England to the establishment of the Tudor dynasty) – the centralization of the country, the creation, contrary to local customs, common law for the whole country, which was sent by the royal courts;
3) 1485-1832 pp. – the period of flourishing of common law and the beginning of its decline. The rules of common law began to deviate from reality: first, common law was very formal and cumbersome, which reduced its effectiveness; secondly, cases which were difficult or impossible to decide on the basis of common law began to be decided by the “law of justice”, which was created independently by the English Lord Chancellor (representative of the king), based on the principles of justice;
4) 1832 – to the present time. As a result of the judicial reform of 1832, judges were given the opportunity to decide legal cases at their own discretion, based on both common law and their own understanding of justice – “judges create law, law is what judges say about it”. The spread of such a system to the English colonies, where they took root, taking into account local specifics.
Characteristic features of the Anglo-American type of legal system:
1) the formation within England and the colonies created by it, which led to the common origin of this type of legal system;
2) the original sources – the common law of England, which arose after the Norman conquest of England (1066), during the judicial reforms of Henry II (XII century.); “Right of justice”, which was formed in the practice of the court of the Lord Chancellor in the XV-XVII centuries; statutory (parliamentary) law, which began to take shape from the end of the XIII century.
After the reforms of the XIX century. the precedent of essentially “common law” and “the law of justice” were to merge completely, but this was only partially done. Until now, the right to justice includes, for example, the institution of trust property, liability for damage;
3) the specifics of the sources of law. The Anglo-American type of legal system is characterized by a historically established form of law – legal (judicial and administrative) precedent. Precedents are not created by all, but only by higher courts: for example, in England it is the House of Lords, the Court of Appeal, the High Court. Courts are obliged to follow the precedents of higher courts and their own precedents. But today the importance of statutory (legislative) acts has also increased. The relationship between precedents and statutes is expressed in the aphorism: “Precedents are the stones from which English law is built, and statutes are the inscriptions on it”.
The most important difference between the Anglo-American type of legal system and the English is the defining role of the Constitution as the main source of law and, accordingly, much more important legislative acts (in particular – codified) in the system of sources of law. At the same time, precedents are set and operated in both at the federal and state levels;
4) a peculiar structure of law. In particular, there is no division of rights into public and private. The main subdivisions of English law are “common law”, “justice” and statutory law. The division in the field of law is different than on the continent. Thus, together with family and civil law, there are separate joint-stock, tort and contract law. The ratio of substantive and procedural law is such that the second initiates the development of the first and is not considered as ancillary to the first;
5) the existence of two types of rules. Legislation is a code of conduct of a general nature. Norms Precedent law have a specific casuistic nature;
6) the autochthonous nature of legal terminology, which is traditionally English, often archaic in nature (for example, trust – trust property). However, English law still borrowed from Roman law a significant set of terms (for example, the terms “contract”, “restitution” and many others are widely used in English law);
7) the main role in lawmaking is assigned to the courts, which, in this regard, occupy a special place in the system of state bodies. The English court, being neutral, does not side with the state. Both the state, which cares about the public interest, and individuals who protect private interests are forced to prove their rightness in court on an equal footing. No less important is the court in the UK. The state regime, for example, is sometimes defined as “the rule of judges”, and the content of the Constitution – as what the court will say about it;
8) the dominant doctrine – the doctrine of the rule of law (rule of law). It is presumed that law as embodied justice exists regardless of its enshrinement by law, and the judge only specifies the principle of justice in a particular case. According to this doctrine, all subjects of law without exception, including the state, are equal before the law and the court;
9) an empirical approach prevails in the development of legal regulation and in the training of lawyers. In particular, higher legal education is still not required, although desirable, to practice law in the UK. Justices of the peace (magistrates), who rule in the vast majority of cases, are not lawyers by education: they only have to be virtuous citizens with average wealth and some life experience.
At this time, the Anglo-American type of legal system was largely close to the Romano-Germanic. This is especially evident in American law, where there is a clear structure of the legal system and systematized legislation, there are codified federal constitutions and state constitutions. In the UK itself, the importance of legislation is growing. There are changes in the training of lawyers. If earlier English lawyers studied mainly in practice, now the priority has been given to university education.
1.3.3. Religious type of legal system
There is a special type of legal system – the religious type of legal system. The main criterion for distinguishing this type of legal system is the state recognition and provision of religious precepts.
Historically, many religions have been centers of law-making and, ultimately, state-building. Examples are the Sinai law of the ancient Jews or canon law in medieval Europe. But nowadays, within the religious type of legal system, there are only two subsystems – Muslim and Hindu law. The religious type includes the legal systems of such Muslim countries as Iran, Iraq, Pakistan, Sudan and others, as well as the Hindu law of the communities of India, Singapore, Burma, Malaysia and others.
Characteristic features of the religious type of legal system:
1) The dominant place in social regulation is not the rule of law, religious norms. The main creator of law – God, not society or the state, so the legal instructions are given once and for all, they must be believed and, accordingly, strictly adhered to. Thus, in Muslim society, the norms of Islam take precedence over positive legislation, and the latter must comply with the Qur’an;
2) The source of law are the sacred books: the Koran, Sunnah, Ijma, which apply to Muslims; Shastras, Vedas, Laws of Manu, which apply to Hindus. Based on them, the actual legal forms in the form of interpretations and comments are created. Religious and philosophical ideas of Islam, Hinduism play the role of principles of law.
Normative legal acts (legislation) are of secondary importance. Judicial practice in the proper sense of the word is not a source of law;
3) a special place in the system of sources of law have the works of theologians (doctrines), which specify the interpreted primary sources and form the basis of specific decisions;
4) legal norms are not dismembered with the norms of religion, but form a syncretic unity with them. Thus, the norm of Muslim law is seen as a universally binding rule of conduct addressed to Muslims by Allah;
5) the law is not structured, namely – there is no usual for the Romano-Germanic type of division of law into private and public, in the field and institutions. For example, Muslim law contains the following structural communities: rules for the exercise of religious duties, the right to personal status, tort law, regulation of property relations;
6) legal regulation is dominated by obligations, in contrast to the systems of European law, where permits predominate.
The religious type of legal system is the least prone to external influences. This type of law is characterized by stability, even conservatism, and sometimes intolerance of other influences.
1.3.4. The characteristics of the EU Law
The EU law was formed at the intersection of international law and national law. It is a separate, special sui generis legal system, which combines legal institutions, principles and mechanisms of international and national law.
The EU law is supranational in nature, as it has the highest legal force in relation to the national law of the member States.
In accordance with the principle of the rule of law of the EU, any rule of law of the Union, regardless of its form of existence, has the highest legal force in the national legal order of each member state with respect to any rule of law of such state, regardless of the form of its consolidation.
The EU law has a direct effect on the national law of the member States. According to the principle of direct action, the EU law confers subjective rights and obligations not only on member States, but also directly on natural and legal persons who can protect their rights guaranteed by EU law by filing claims in the courts of member States, that is, within the national legal system.
In its focus, the EU law is integrative, as it introduces uniform, unified rules of conduct for all member States, individuals and legal entities under the jurisdiction of the EU.
The EU law has a significant impact on the national law of the member States and determines the development of the national legal systems of the member States. Also, the EU law has a significant impact on the legal systems of third countries. The basis of such influence is international cooperation agreements, including Association agreements, which contain obligations to harmonize national legislation with EU law.
The EU law is characterized by its own structure and sources of law, forms of lawmaking and law enforcement, and specific mechanisms of protection against possible violations.
The basis of the EU legal system are its constitutive treaties, i.e. the Treaty on European Union (1992) and the Treaty on the Functioning of the European Union (1957), Charter of Fundamental Rights of the European Union (2000) in the wording of the Lisbon Treaty 2007. The provisions of those acts are detailed and specified in numerous acts of secondary law (regulations, directives, decisions, etc.) adopted by the institutions of the EU, the case-law of the Court of justice of the EU.
EU legislation is divided into primary and secondary. The treaties (primary legislation) are the basis or ground rules for all EU action.
Every action taken by the EU is founded on treaties that have been approved voluntarily and democratically by all EU member countries. For example, if a policy area is not cited in a treaty, the Commission cannot propose a law in that area.
A treaty is a binding agreement between EU member countries. It sets out EU objectives, rules for EU institutions, how decisions are made and the relationship between the EU and its member countries.
Treaties are amended to make the EU more efficient and transparent, to prepare for new member countries and to introduce new areas of cooperation – such as the single currency.
Under the treaties, EU institutions can adopt legislation, which the member countries then implement.
The main treaties are:
Treaty of Lisbon.
Signed: 13 December 2007; Entered into force: 1 December 2009.
Purpose: to make the EU more democratic, more efficient and better able to address global problems, such as climate change, with one voice.
The Lisbon treaty clarifies which powers:
– belong to the EU
– belong to EU member countries
– are shared.
Treaty of Nice.
Signed: 26 February 2001, Entered into force: 1 February 2003.
Purpose: to reform the institutions so that the EU could function efficiently after reaching 25 member countries.
Main changes: methods for changing the composition of the Commission and redefining the voting system in the Council.
Treaty of Amsterdam.
Signed: 2 October 1997; Entered into force: 1 May 1999.
Purpose: To reform the EU institutions in preparation for the arrival of future member countries.
Main changes: amendment, renumbering and consolidation of EU and EEC treaties. More transparent decision-making (increased use of the ordinary legislative procedure).
Treaty on European Union – Maastricht Treaty.
Signed: 7 February 1992; Entered into force: 1 November 1993.
Purpose: to prepare for the European Monetary Union and introduce elements of a political union (citizenship, common foreign and internal affairs policy).
Main changes: establishment of the European Union and introduction of the co-decision procedure, giving Parliament more say in decision-making. New forms of cooperation between EU governments – for example on defence and justice and home affairs.
Single European Act.
Signed: 17 February 1986 (Luxembourg) / 28 February 1986 (The Hague); Entered into force: 1 July 1987.
Purpose: to reform the institutions in preparation for Portugal and Spain’s membership and speed up decision-making in preparation for the single market.
Main changes: extension of qualified majority voting in the Council (making it harder for a single country to veto proposed legislation), creation of the cooperation and assent procedures, giving Parliament more influence.
Merger Treaty – Brussels Treaty.
Signed: 8 April 1965; Entered into force: 1 July 1967
Purpose: to streamline the European institutions.
Main changes: creation of a single Commission and a single Council to serve the then three European Communities (EEC, Euratom, ECSC). Repealed by the Treaty of Amsterdam.
Treaties of Rome : EEC and EURATOM treaties.
Signed: 25 March 1957; Entered into force: 1 January 1958.
Purpose: to set up the European Economic Community (EEC) and the European Atomic Energy Community (Euratom).
Main changes: extension of European integration to include general economic cooperation.
Treaty establishing the European Coal and Steel Community.
Signed: 18 April 1951; Entered into force: 23 July 1952.
Expired: 23 July 2002
Purpose: to create interdependence in coal and steel so that one country could no longer mobilise its armed forces without others knowing. This eased distrust and tensions after WWII. The ECSC treaty expired in 2002.
Regulations, Directives and other acts.
The aims set out in the EU treaties are achieved by several types of legal act. Some are binding, others are not. Some apply to all EU countries, others to just a few.
A “regulation” is a binding legislative act. It must be applied in its entirety across the EU. For example, when the EU wanted to make sure that there are common safeguards on goods imported from outside the EU, the Council adopted a regulation.
A “directive” is a legislative act that sets out a goal that all EU countries must achieve. However, it is up to the individual countries to devise their own laws on how to reach these goals. One example is the EU consumer rights directive, which strengthens rights for consumers across the EU, for example by eliminating hidden charges and costs on the internet, and extending the period under which consumers can withdraw from a sales contract.
A “decision” is binding on those to whom it is addressed (e.g. an EU country or an individual company) and is directly applicable. For example, the Commission issued a decision on the EU participating in the work of various counter-terrorism organisations. The decision related to these organisations only.
A “recommendation” is not binding. When the Commission issued a recommendation that EU countries’ law authorities improve their use of videoconferencing to help judicial services work better across borders, this did not have any legal consequences. A recommendation allows the institutions to make their views known and to suggest a line of action without imposing any legal obligation on those to whom it is addressed.
An “opinion” is an instrument that allows the institutions to make a statement in a non-binding fashion, in other words without imposing any legal obligation on those to whom it is addressed.
An opinion is not binding. It can be issued by the main EU institutions (Commission, Council, Parliament), the Committee of the Regions and the European Economic and Social Committee.
While laws are being made, the committees give opinions from their specific regional or economic and social viewpoint.
For example, the Committee of the Regions issued an opinion on the clean air policy package for Europe.
1.3.5. The characteristics of the Ukrainian legal system
The Ukrainian legal system belongs to the Romano – Germanic (continental) type of legal system as a kind of a system of a special European type.
In Ukrainian law, the law (normative act) has priority, not a court decision (precedent), as is typical of the Anglo-American legal family.
At the top of the normative acts is the Constitution of Ukraine. According to Article 8 of the Constitution of Ukraine, the Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and must comply with it.
The European integration vector of Ukraine’s development is the foundation for the convergence of Ukraine’s national law with European law.
Historically, the legal system of Ukraine gravitated to the Romano-Germanic legal family. For example, the Statutes of the Grand Duchy of Lithuania, “The Rights Under which the Little Russian People Are Tried” and other sources of Ukrainian law were built according to the type of Romano-Germanic law.
During the Soviet period, the legal system of Ukraine was part of the family of socialist (ideological) law. However, even then the legal system of Ukraine retained the main feature of Romano-Germanic law, namely – the normative-act nature of the sources of law.
The transitional nature of Ukraine’s legal system (like other post-Soviet countries) has led to controversy over its place on the legal map of the world.
According to one view, the former affiliation of the socialist countries to the Romano-Germanic legal family allows us to speak only of their return to this community.
According to another, the historical and ethnocultural specifics of Eastern European countries suggests that the post-Soviet Slavic countries form a Slavic legal family.
The principles of the rule of law proclaimed by the Constitution of Ukraine have provided a significant change in the content of the norms that form the basis of the legal system of Ukraine. Within the system of law, changes have taken place in the composition and content of the rules of both public and private law. The consequence of the recognition of the priority of universal values over the state was a wider dispositive behavior of the subjects.
In general, the structure of the system of national law in the form of its division into industries, institutions and norms, remained the same, but due to changes in the system of public relations changed the subjects of legal regulation, which serve as a basis for differentiation in industries and institutions. The consequence of this was the emergence of new industries, institutions and norms (tax, budget, banking, land law, etc.).
One of the trends in the development of Ukrainian law is its close interaction with the principles and norms of international law. The process of convergence of the legal system of Ukraine and European countries involves the interdependence of international and national law.
The sources of law in modern Ukraine are acts of national law and acts of international law. Speaking about the legal system of Ukraine in the formal-legal sense, we can distinguish between primary and secondary sources, as well as sources of primary and secondary nature.
Ukraine is a country of codified law. The main source of national law is a normative legal act. At the head of the hierarchy of normative legal acts is the Constitution of Ukraine, followed by laws and bylaws. International treaties ratified by the Verkhovna Rada of Ukraine are an integral part of its legal system. If the rules of an international treaty of Ukraine differ from the rules of its domestic nature, the rules of the international treaty shall apply.
Additional sources of law are regulations, legal customs, legal precedent.
Among the sources of Ukrainian law, the importance of the legal agreement is growing significantly. Normative agreement is used as a source of law in the field of public international law, constitutional law, labor law, its distribution also takes place in the field of administrative and civil law.
Legal precedent is derivative in relation to other sources of law. There are so-called precedents of interpretation (normative interpretative acts) and judicial precedent.
Precedents of interpretation are created by the Constitutional Court of Ukraine, the Supreme Court of Ukraine, the Supreme Commercial Court of Ukraine. These acts have some normative features, but are not self-sufficient and are valid only as long as the act is valid, the interpretation of which is related to the relevant precedents.
Judicial precedent (a variant of which is the generalization of judicial practice) is not officially recognized as a source of law. However, in fact, its role has grown significantly in recent decades. Increasingly, in resolving specific cases, law enforcement officials refer to the decisions of higher courts.
As a result, it should be noted that today the legal system of Ukraine as a whole corresponds to the characteristics of the Romano-Germanic family, returning to it after more than seventy years of domination of the socialist system.
Topic 1.4. The rule of law in Ukraine
1.4.1. The rule of law as a normative ideal
The rule of law as a normative ideal to which every system of law should strive, and as a universal and integral principle of law must be considered, including in the context of its fundamental components, such as the principle of legality, the principle of separation of powers, the principle of people’s sovereignty, the principle of democracy. the principle of legal certainty, the principle of a fair trial.
In accordance with the first part of Article 8 of the Constitution of Ukraine, the principle of the rule of law is recognized and operates in Ukraine. The rule of law is the rule of law in society. The rule of law requires the state to implement it in law-making and law enforcement activities, in particular in laws, which in their content should be permeated primarily by the ideas of social justice, freedom, equality and so on.
Justice – one of the basic principles of law, is crucial in defining it as a regulator of social relations, one of the universal dimensions of law.
Justice is usually seen as a property of law, expressed, in particular, in the equal legal scale of behavior and in the proportionality of legal responsibility for the offense.
One of the manifestations of the rule of law is that law is not limited to legislation as one of its forms, but also includes other social regulators, including morals, traditions, customs, etc., which are legitimized by society and determined by the historically achieved cultural level of society.
All these elements of law are united by a quality that corresponds to the ideology of justice, the idea of law, which is largely reflected in the Constitution of Ukraine.
Such an understanding of the law does not give grounds for its identification with the law, which can sometimes be unfair, including restricting the freedom and equality of the individual.
One of the elements of the rule of law is the principle of legal certainty, which states that the restriction of fundamental human and civil rights and the implementation of these restrictions in practice is permissible only if the predictability of the legal norms established by such restrictions.
That is, the restriction of any right should be based on criteria that will allow a person to separate lawful behavior from illegal, to predict the legal consequences of their behavior.
The rule of law should be understood, in particular, as a mechanism to ensure control over the use of power by the state and to protect people from arbitrary actions of state power.
The rule of law as a normative ideal to which every system of law should strive, and as a universal and integral principle of law must be considered, in particular, in the context of its fundamental components: the principle of legality, the principle of separation of powers, the principle of people’s sovereignty, the principle of democracy certainty, the principle of a fair trial.
Thus, the rule of law means that public authorities are limited in their actions by pre-regulated and announced rules that allow them to predict the measures to be applied in a particular legal relationship, and, accordingly, the law enforcement entity can anticipate and plan their actions and calculate on the expected result.
Everyone arranges his life with the awareness that legal regulation requires stability and public authorities cannot arbitrarily make changes that violate the fundamental principles of law.
Therefore, the expectations of an individual in connection with a change in legislation are legitimate if they are reasonable and there is a possibility of harm from violating such expectations.
When regulating public relations related to the implementation of, in particular, social policy, in connection with the adoption of new laws or amendments to existing public authorities should give individuals the opportunity to adapt to the new legal situation so that their legitimate expectations are protected .
Thus, legitimate expectations as a component of the principle of the rule of law is one of the main criteria for the constitutional assessment of the rule of law.
The rule of law, as an integral element of the system of values that underpins the modern European legal order, belongs to the triad of principles of the common heritage of the peoples of Europe, along with its components such as true democracy and human rights.
The Ukrainian formula of the rule of law as the basis of the national constitutional order is twofold: according to the first component, “the rule of law in Ukraine is recognized”, according to the second, “the rule of law in Ukraine operates”.
As for the first – the imperative to recognize the rule of law by the state, Ukraine fulfilled it both at the international level (by acceding to the Statute of the Council of Europe and ratifying the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950) and nationally (by regulating the rule of law). Chapter I “General Principles” of the Constitution of Ukraine, due to which it, together with other principles of this section, defines the Ukrainian constitutional order, as well as by standardizing this principle in ordinary laws of the state as a guide for various public authorities).
The second component of the “rule of law” (rule of law) puts forward the imperative of its effectiveness, i.e. efficiency, which, in fact, is to ensure its practical significance. It is primarily a set of national institutions, mechanisms and procedures that are final for a person to be able to possess human dignity and protect themselves from arbitrary actions of the state (its bodies and officials).
This component is aimed mainly at the requirement that the political and legal systems of the state have those institutional (structural) elements that, in combination with the relevant legal procedures, provide the institutional and procedural mechanisms of the rule of law.
A special role in the system of institutional support for the rule of law is assigned to the judiciary in general, and in particular to the constitutional and administrative types of proceedings. These two types of justice are designed to ensure the coherent nature of the entire legal system in a coexistence of contradictory rules, thus achieving the effectiveness of the rule of law (rule of law), i.e. its effectiveness.
1.4.2. Ukrainian’s legal culture and civil society
Human rights as the foundation of civil society are first formed in the legal culture. Further, human rights are fixed by the Constitution and the laws and are guaranteed by the State. It can be argued that the development of civil society and the formation of legal culture are mutually determinable processes.
Hence, the development of civil society in Ukraine depends on consolidation in the legal culture of the idea of human rights and freedoms, which can unite the whole society and encourage it to qualitatively new economic, cultural and legal achievements. The legal culture in Ukraine reflects the unity between the past (the legal tradition), the current state of the Ukrainian legal system (legal reality) and public perception about its desired status (legal ideal).
At the same time, the legal culture of Ukrainians as part of the general culture of Ukrainian society was formed in historically challenging conditions. Its formation came under the influence of legal cultures of Byzantium, the Grand Duchy of Lithuania, Poland, Sweden, the Crimean Khanate, Tsarist Russia and the Soviet Union.
With that there were several substantial sources of the law which acted in the territory of Ukraine from the Kievan Rus ‘ and ending our days. A special role among the sources of law in Ukraine have Rus’ – Byzantine Treaties and “Rus’ka Pravda”, which also had a significant impact on the development of legal systems of the Grand Duchy of Lithuania (modern Lithuania) and the Polish Kingdom (modern Poland). The great value of Ukrainian lands had also the Statutes of Lithuania and the Common law of Cossacks. In the future, after the accession of Ukraine to Russia in 1654, the legal system of Ukraine was under the influence of Tsarist Russia and the Soviet Union before gaining independence in 1991.
At the present stage of its development the legal culture of Ukrainians is the system of relations between the person and the right. This system is characterized by the following negative and positive factors: the legal nihilism, the lack of trust in the judicial system, the low level of legal literacy, the powerful volunteer movement.
As the antipode of legal culture the legal nihilism of a considerable part of Ukrainians finds its expression in the denial of social and personal values of the law.
Most Ukrainians consider the law as an imperfect instrument for regulating relations in society. In everyday life more convenient and reliable way looks the soft corruption, and at the State level (until recently) dominated the animal acquisitiveness based on the pathological greed
The economic foundation of a legal nihilism is the total impoverishment of the absolute majority of Ukrainians. The minimum wage in Ukraine is 65 euros per month, and the average wage is 150 euros per month. In a crisis situation today Ukrainians are increasingly operating not in accordance with the legal and moral standards, but under the influence of the negative environment in which they find themselves.
In the mass consciousness is cultivated anti legal dependence: not profitable to live by the law – is more profitable to ignore the law. At the level of public consciousness the failure of the law does not always cause condemnation, because in the past the Soviet Ukrainian Government was seen by ordinary Ukrainians as the enemy and not complying with the laws of such a State looked like a kind of protest against the administrative-command system.
The paradox is also the fact that many of the older generation felt more secure under a totalitarian regime and do not perceive the democratic transformation for ideological reasons.
In addition, the Soviet Union had deliberately cultivated a low level of legal literacy of citizens, which was achieved in particular through the difficult access to the legal literature (codes can buy only lawyers on a subscription basis). The state of legal illiteracy of the Ukrainians was in the interests of a totalitarian Government.
Thus, there is the struggle of two legal culture traditions in Ukraine: the former, traditional legal culture of the totalitarian regime and the new, legal culture of independent Ukraine.
The lack of trust in the judicial system among Ukrainians showed such facts. More than 80% of Ukrainians believe that the right to a fair trial is a privilege of the rich part of the population. More than 50% of the Ukrainians, who have faced legal problems, did not even attempt to defend their rights, because they believe that their efforts will lead nowhere in connection with the total corruption, which pervades the entire judicial system of Ukraine.
In the context of corruption in the Ukrainian legal system, attention is drawn to the fact that the first place in purchasing expensive estates in Ukraine is taken by the judge, the second place is occupied by the representatives of the internal revenue service, the third place belongs to the prosecutors, fourth place: the police and only the fifth place taken by businessmen.
It should be noted that corruption is an integral part of self-regulation of Ukrainian society, which does not have a persistent tradition of democracy, legal State and civil society. In Ukrainian society, without well-established State institutions and the high level of self-organization, the bribes replace the State institutions and demonstrate the effectiveness of corrupt relations at the present stage of development of Ukrainian society.
In view of the emergency situation with corruption in the judicial system of Ukraine, the supreme legislative body of Ukraine – Verkhovna Rada (the Supreme Council) adopted the law of Ukraine “On restoring confidence in the judicial system in Ukraine” dated April 8, 2014.
This law defines the legal and organizational framework for conducting ad hoc checks of judges of courts of general jurisdiction as temporary enhanced event using the existing procedures, consideration of questions about the prosecution of judges of courts of general jurisdiction to disciplinary liability and dismissal for breach of the oath in order to enhance the credibility of the judiciary and the confidence of citizens to the judicial branch, the restoration of legality and justice.
The positive factors influencing the Ukrainian legal culture can be attributed to the Ukrainian mentality and the modern Ukrainian’s volunteer movement. Features of the Ukrainian mentality: the love for the land and private property (individualism), the domination of the feelings over the reason, the lack of system (emotionality), the desire for freedom (love of freedom), the ability to adapt to the existing order (social mimicry), the faith of Ukrainians in their fundamental Christian entity (orthodoxy), the self-esteem and the rejection of authority (anarchism).
During the years of independence, the Ukrainian State has not developed, and has been steadily degraded to the state of fragile public form. At the same time, civil society through two revolutions (Maidan 2004 and Maydan 2013) has reached a high level of development. This is evident in the current military confrontation with Russia.
The Ukrainian State and army could not save Ukraine. Ukraine was saved by civil society. Have been formed of 30 volunteer battalions for participation in hostilities.
In general, not generous people, Ukrainians nevertheless raised more than $ 10 million to the needs of the Ukrainian army. In addition to money the Ukrainians through volunteers supplied the army with food, clothing and military equipment.
The desire to defend their independence and willingness to fight for their country, said about the formation of civil society in Ukraine.
The Section 1 “Тheory law basics” is an important component of the whole course “Ukrainian law basics”.
The issues of a general nature, which are considered in this section, are, so to speak, the general part of the whole course. The knowledge gained during the mastering of this general theoretical section will be useful in studying the following topics of the course.
Questions for self-control:
1. What is the difference between legal norms and social norms?
2. What are the differences between the legal norm and the rule of law?
3. What is the ratio of law and legislation?
4. What is the difference between private law and public law?
5. What are the main features of the offense?
6. What are the main features of the legal liability?
7. What are the differences between the Romano-Germanic type of legal system and the Anglo-American legal system?
8. What are the basic principles of law in Ukraine?