Ukrainian law: identification and development of the national legal system
Modernity does not reveal the problem of identifying the national legal system of Ukraine despite considerable research efforts. As we can`t answer the question, which has a rather tangible political color with the introduction of ideological concepts concerning certain patterns of development of the Ukrainian society. Finally, we will come to a state of uncertainty in our scientific research into the membership of the Ukrainian national legal system which objectively characterizes the complexity of the processes of formation of the Ukrainian law.
We are witnessing a strange situation when the society sensitively reacts to all problems that exist in the legal system but the solution to these problems is precisely the same society at the initiative of the political and legal elites transferring beyond the national boundaries, which significantly influences the definition of ways and means of solving the problem of identifying the national legal system. We are constantly looking for advice, expecting recommendations, identifying strange landmarks as ours – internal ones, making mistakes, moving in the opposite direction to regain the national synergetic in its revolutionary form and begin a more dynamic process of effective legal transformation. On a quite logical question - why the development of the legal system is such, we don`t find a unanimous answer. This unanimous response is not characteristic of law, but it is necessary for legal practices, on the other hand, which does not receive from the national science fruitful thoughts, based recommendations for developing the national legal system.
After all, we will agree with the conclusions regarding the domestic political and legal elites. Consequently, the formation of domestic political and legal elites in conditions that characterize the formation and development of the law of Ukraine in a new era in modern history are far from being able to really influence the complex processes of the state formation and the formation of the national legal system. However, criticism of the legal elite of modern Ukraine is largely self-criticism because there is always a question as to what was done, if it was possible, for the successful and effective development of the national legal system. Ukrainian lawyers still should confirm the effectiveness of their participation in the formation of the national legal system, but practically no leeway.
The legal elite of Ukraine is represented by many honored scholars as general theoretical jurisprudence, as well as branch legal sciences. Well known lawyers have respect not only among their home colleagues but also recognized outside of Ukraine. However, the elitism of lawyers in most cases remains corporate and does not find its public recognition in several circumstances, the main of which is the rejection by society and its individual representatives of not only a complex process of law enforcement, but also an understanding of law, which is no less important for the development of the national legal system.
The Ukrainian law belongs to the continental law - who refutes such a conclusion? But there is a complexity that legal affiliation involves not only geographical proximity, but also spiritual unity, community of culture and social practice. The Ukrainian society in this has its own national characteristics and traditions, which from the past become modern and form a national legal opinion, which influence for legal behavior and, ultimately, create the legal climate that that affects lawmaking and in legal practice.
Turning to the formation of the legal system, we are forced to consider the sources of law, which naturally distinguish the main sources for determining the national legal system. The constitution and laws adopted by the parliament (the Verkhovna Rada of Ukraine) are the main sources of law. However, the paradigm of constitutionalism, which accompanies any national legal system, undergoes substantial testing on the way of implementation in conditions of the Ukrainian statehood. The constitutional nihilism is less common to civil society than the practice of state authorities. The constitutional nihilism and even open ignoring of the provisions of the Constitution lead to abuses of law, to constitutional violations, and eventually - to nullify the realization of the rule of law. From violations of the Constitution to violations of the laws is a rather short path and it overcomes quickly to satisfy the political ambitions and the private interests. The corruption and its most dangerous form – the political corruption erodes the already unstable foundations of the legal system.
The recent history of Ukraine is insignificant and even meager the period from the standpoint of history. The Ukrainian legal system is not formed, nor is it currently formed the institutions of the state, undergoing constant changes and reform. This is a logical process when state and law developing in unity, experiencing mutual influence, but the legal state recognizes the dependence of the state and its institutions on law. The law is based on those values that are eternal for humanity, which carry an idea sanctified by God, and the departure of such values destroys not only the idea but also the philosophical foundations of human existence.
The Ukrainian law derives from the diversity of the Ukrainian culture, from the multinational structure of society, from the Europeanness of the Ukrainian mentality, which tending to the idea of law, but is not aware of this idea at present, because of a certain deficit of historical truth, distorted by the introduction of a foreign origin to the Ukrainian legal culture, which for a long time have been accepted and are now accepted for their own legal genotype. The disorganization of the Ukrainian legal ideology and the legal culture is a problem that is heavily mixed with mistakes and violations of legal practice, which hinders the development of the national legal system and requires active opposition from academics and practitioners. The hard work of academics and practitioners, based on a true attitude towards law, must gain social recognition and become a guarantee of the certainty of the Ukrainian law within the framework of an exemplary and effective national legal system.
PhD in Law, associate professor Pavlo Bogutskyi
