THE USE OF LEGAL SCHOLARSHIP BY THE COURTS OF UKRAINE

В статье анализируются особенности использования правовой доктрины судебными органами Украины. Охарактеризованы основные причины отсутствия устоявшейся практики цитирования в судебных решениях научных работ.

Problem setting.The recognition and implementation of democratic principles, human rights doctrine associated with the fall of the «socialist camp» led to significant changes in various fields -economics, politics, law and others.Along with this, the intensity and effectiveness of transformational changes is quite heterogeneous.This use of the legal doctrine (achievements of the legal science) has been emphasized by decision makers.So, it is important to determine the optimal approaches and forms of such use in the lawmaking and judicial practice.
There are two main forms of applying the legal doctrine in the legal practice.First, when the doctrinal provisions are part of lawyer's consciousness in the course of studying scholarly writings.This is an indirect impact of the legal doctrine on the process of taking a decision by the lawyer.Secondly, on condition that the practice of applying norms of law is quite controversial, there are gaps in legislation, conflicts of legal rules, judges and lawyers use legal doctrine as a means of additional reasoning, referring in their decisions to the competent works of scholarly writers.At the same time, in the post-Soviet regions (including Ukraine) these issues have not been purposely studied by jurists, hence the relevance of our research.We believe that this subject matter is more complex and difficult than it might seem at first glance.Many important issues and related problems that need research are not obvious in the light of statistics.
The concept of legal doctrine in civil law systems is characterized by such terms as: «legal science», «legal theory», «jurisprudence», «legal writing», «legal principle», «influential body of teachings», «legal dogmatics» etc. Legal doctrine is also used in the sense of results of scientific research -treaties, legal encyclopedias, legal dictionaries, law articles published in legal journals and law reviews.The term «legal scholarship» is the most common in the Anglo-American law.In the US, the UK, Canada, Australia many works were published, which studied the specific features of applying legal scholarship in the judge's decisional process.The content analysis of court decisions shows that the judges use not only statutes and precedents for the decision making.When dealing with complicated cases in the interpretation of statutes, changing precedents, in constitutional proceedings, judges often use persuasive authorities (including legal scholarship), directly referring to them in their judicial decisions, making their legal position more reasonable and convincing.In the US, this practice is prevailing.
In fact, no decision of the Supreme Court of the United States can be taken without this kind of citation.It's no secret that in every area of law, there are several works (usually no more than three or four works mainly in the form of monographs), which have the status of doctrinal and are most often cited by judges and legal scholars.Their authors have made a significant contribution to the development of certain institutions of law and enjoy great respect among lawyers.These works are cited by them on the exclusive (only specific authors and no others) or priority basis.Their distinguishing features are: a) fundamental and encyclopedic nature -the author is trying to look into each «corner» of the area of law, which is studied; to analyze every aspect in detail, often providing insights into history and considering how a particular legal problem was solved in different legal systems; b) periodic re-edition of an updated version by the writing staff, as a rule by a student of the original author, his followers or fellow-thinkers.Among these works we can name the following: Benjamin's Sale of Good; Paget's Law of Banking; Clerk & Lindsell On Torts; Megarry & Wade: The Law of Real Property etc.
In the Soviet legal literature the term «doctrine» was used mostly in a negative sense, in particular in the context of condemning the state legal policy of bourgeois states.The eloquent publication titles of the Soviet scholars speak for themselves: Bourgeois democracy: the crisis of the institutions, the futility of doctrines (1970), The Illegality of the US doctrine of nuclear war (1985), Criticism of American doctrines and practices in international cooperation on human rights (1983) etc.
In our view, there are no fundamental differences between the concepts «legal doctrine» and «legal scholarship», but you can find them if desired.Fбbio Shecaira also noted that legal scholarship and the doctrine (the latter being the preferred phrase in many civilian jurisdictions) refer to the same things, namely, formalist academic works concerning the law [11, p. 75].
In our study, we use these terms as synonyms in the meaning recognized in the legal community, relying on the views of legal writers (mostly scholars) and their legal writings, which can be described as doctrinal (most influential and authoritative).We used The Unified State Register of Court Decisions1 to study the influence of legal scholarship on court decisions.Of the total number of judgments found in the database (more than 57 million decisions) only several hundred comprise citations to legal scholarship.On the basis on these figures, it may be concluded that in Ukraine (by the way as in other post-Soviet countries) such citation practice is almost non-existent.This can be explained by several reasons.
In our view, first of all the reason for that is existing judicial traditions which largely determine the specific character of court's argumentation.The Soviet period had the most notable consequences in the formation of those traditions.Because of the prevalence of legal positivism in the Soviet jurisprudence and system of legal education (so-called narrow-normative understanding of law -«all law is to be found in the legal norms issuing from the State») and the principle of «socialistic legality», the references to the views of scholarly writers and non-legal information in the form of direct citation in court decisions was actually forbidden.Today in Ukraine we can observe positive changes in this area.Approaches to justice, its philosophy and methodology are changing.Judges are becoming more «open» in the course of making decisions; they try to take into account economic, political, cultural and religious aspects of the case that had been submitted to court, and go beyond rigid statutory norms in search of more flexible legal solutions that are in line with the complex and changing realities of life.Judges no longer rely solely on the legislation and refer to the principles of law, precedents and legal scholarship.This is most noticeable as in the case of the body of constitutional jurisdiction (The Constitutional Court of Ukraine).Although, this is just the beginning of a long and hard path of changes and reforms, which brings many challenges and obstacles.The ghosts of the past and still haunt the minds.Rephrasing F. Maitland's famous saying, let's remark here, that legal principles, rules, notions of the nature and the role of law prevalent in the Soviet period that we have buried, still rule us from their graves.They can be seen today (albeit usually veiled) in some textbooks on jurisprudence and in the activities of decision makers, especially those who were educated and started their professional careers in the Soviet times.
A congested operating schedule of the courts.This is one of the key problems of the Ukrainian judicial system.First of all this is the case of the first-instance local courts, which decide the vast majority of cases heard by the bodies of judicial power in Ukraine.Moreover, the total number of cases heard by Ukrainian courts is increasing every year.In this regard, the judges literally do not have enough time and energy to work at detailed reasoning and thorough study of the legal position that they suggest.It is also one of the important reasons why judicial decisions are usually rather short and nontransparent.
The quality of the academic writings is rather low.The problem is that practicing lawyers do not always see scholars as reliable partners, because they often produce airy-fairy provisions or ideas, devoid of any practical significance or do not develop any problems really relevant to the legal practice.This issue will be studied specifically in our next publications.Let's remark here that such a problematic situation is not unique to Ukraine.Chief Justice of the United States John G. Roberts recently explained that he does not pay much attention to law review articles, reportedly stating that they are not particularly helpful for practitioners and judges [9, p. 996].And Chief Justice Roberts is not alone in his criticism; he is also supported by many other American judges.I heard similar views and statements (even in more radical forms) as part of my personal contacts with Ukrainian judges and advocates.«If the academy does want to change the world», federal Judge Reena Raggi said at one of the conferences, «it does need to be part of the world» [8].These calls are currently mainstream and they can be addressed to Ukrainian scholar writers.They should publish their works on current issues in a simple-to-understand form.
Another feature of the use of legal scholarship in court decisions is that Ukrainian judges rarely cite specific works of scientists.Instead, reasoning their opinion, judges tend to use such structures, «according to the views, established in the legal literature», «in accordance with recognized approaches in legal science», «in line with the general doctrinal approach», «in the legal doctrine it is widely acknowledged that» etc.What is the reason for that?
In our view, this somewhat cautious attitude of judges can be explained by the much too «young age» of the Ukrainian legal science.The declaration of independence of Ukraine in 1991 was the starting point for a qualitatively new stage of development of Ukrainian society as a whole, and for legal science in particular; entirely new subject matters, methodological approaches emerged, which were actually banned in the Soviet times.A real opportunity to use the achievements of foreign legal science arose.However, 25 years is probably too short a period for the views of scholars to acquire the status of doctrinal and enjoy undisputed authority in Ukrainian legal community.Of course, in every area of law you can find several works that make a real difference -they were written in Ukraine by known authors, they are studied by university students, often cited by other scholars.However, these works have not received recognition and do not have so much authority as, for example, the works by Holmes, Dworkin, Pound, Fuller, Posner and Wigmore in the US.
As we know, this process is lengthy and multistage, and begins as a rule with producing original views (ideas, hypotheses) regarding certain phenomena of state and law, or validation of new approaches to solving the urgent problems of legal practice.In the process of scientific discussions that take place on the pages of magazines, at conferences, scientific ideas and provisions are refuted or find support in legal circles and are improved further.Also effective ways and mechanisms of their implementation in various areas of legal practice are developed.This may even be accompanied by the emergence of a new trend in the legal thought or development of scientific schools.It may take more than one decade before the views (arguments, the original legal concepts and constructions) of a scientist and his books are universally recognized.
Conclusions of the research.In our view, citation to legal scholarship should be relevant and made in the proper form.In our view, it is necessary not just to refer to specific scientific papers or citations of names of prominent scholars in court decisions.Judges should cite specific position of authors that they associate themselves with.This makes the position of the court in the case more clear and understandable.Citation to legal scholarship is relevant when considering the so-called «hard-cases», which can not be resolved by the mechanical application of statutory rules and regulations, or cases involving issues of social importance, or causing heated debates in society (legalization of abortion, soft drugs, euthanasia, etc.).
Court decisions in these cases should be accepted and positively assessed by the public.So in fact the judges have to use different arguments.We believe that Ukrainian judges should change their conservative approaches to law enforcement.They should more actively use arguments suggested by scientists while reasoning their positions in cases.We should also pay our attention to another important aspect of this issue.If the judge decides contrary to the conventional approach to solving some legal problems, set out in doctrinal writings, then most likely his/her decision will not be accepted by the legal community and (probably) approved by the general public.Moreover, such decisions may cause loss of confidence in the judiciary as a whole and undermine the authority of justice.