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Філософія правосуддя. Судова філософія як прикладна філософія права

17.09.2009

17 вересня 2009 року В’ячеслав Бігун представив окремі тези свого дослідження філософії правосуддя (читай тези нижче) під час роботи секції „Феноменологія та герменевтика права” (під головуванням Олексія Стовби - на фото - праворуч) у межах XXIV Світового Конгресу IVR.

JUDICIAL PHILOSOPHY AS APPLIED PHILOSOPHY OF LAW

Dr Vyacheslav Bihun, LL.M., V. M. Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine (XXIV IVR Congress Beijing, August 17, 2009)

General remarks

The goal of my research is rethink, anatomize the justice as judicial process in terms of philosophy of law as applicable to Ukraine ongoing judicial reform.

  1. The object of my research is justice as judicial process.
  2. The methodology of my research is that of philosophy of law.
  3. Major theses:
    1. judicial process is an applied philosophy of law and
    2. personality is a guarantee of justice for it is instrumental in the content-type realization of law especially in collisions of form and content of law

I concentrate of the first thesis.

  1. Preliminary research is summarized in a chapter in the collective monograph “Justice as Judicial Process: Philosophical and Theoretical Reasoning”, published in Ukraine and presented at this IVR Congress.

Specific remarks

  1. I intent to exemplify various understandings of philosophies of law and their relevance to judicial philosophy. I should add that what I mean by judicial philosophy here is more than a philosophy of a judge or judges, it is a philosophy of justice in terms of judicial process.
  2. I will suggest various types of understanding philosophy of law based on the following understanding of its subject matter.

Philosophy of law as determined by a certain understanding of law

  1. Philosophy of law as a philosophy determined by a certain concept, more precisely, understanding of law. The two major understandings are those of national law theory (jus naturalis) and positivism, the first viewing as foundation of law certain “higher” values, principles as justice, equality, etc while the second considers the law to be positivisitic results of certain activities such as state as authority (legism) or society (sociological approach to law). There is a long-lasting discussion as two whether these two may be in any way combined in practice and applied in practice.
  2. These understandings, or concepts, become practically relevant in the judicial process. What matters is not only preference of a judge or other participants in judicial process to a particular understanding of law, but also the focus of the judge: whether he concentrates, for example, on context or text. If he concentrates on the text of a statute, he might tend to interpret it formalistically, textually. He can also concentrate on a context: circumstances of a particular case may be more important than the statute applied. Thus, such important cases as Saddam Hussein Trial, Nuremburg Trial or Socrates Trial may not be viewed separately from the context of these cases – social, historical etc.
  3. One of the problems with this approach is that it creates tensions that can not be easily resolved. Thus, positivistic understanding of law by prosecutor may collide with jus-naturalistic understating of law by judge. Judge is usually is bound to rule by reason and law (statute) and if he adhere to this he might collide with views of defense lawyer or litigant’s attorney who tend to have more broader than legist understanding of law.

Philosophy of law as determined by co-relation and differentiation of law as Recht und Gesetz

  1. The said subject matter is a concretization of the previous.
  2. The variation here are those of “right law” (правовой закон – V. Nersesyants), uebergesetzliches Recht (G. Radbruch) or even “Recht as Gesetz” (Law embracing the right) (V. Malakhov).
  3. Consider examples: ideologically-charged trials of the Nazi or Stalin times .
  4. The judicial process is the process where these various understanding collide or integrate.
  5. Consider also an example of 2007 Ukraine’s Parliament Dissolution case where a court decision could have turned on a position of a majority of judge’s understanding of law.

Philosophy of law as determined by a specific / personal philosophy or particular views thereof

  1. Judicial system or a particular participant of a judicial process may be based on a particular philosophy. Examples thereof may be various types of philosophy which is founded by a certain world-view.
  2. For example, judge may be a proponent of cynic philosophy or a humanistic philosophy, be against the death penalty. A valuable example is that of discharging by a referendum of a Supreme Court California (US) judge from her position in the light of her assumed position against death penalty as opposed to the dominating view of the necessity of its application in the state.

Preliminary resuming remarks

  1. Judicial process is a process enlivening law, bringing a particular idea of law into realization. Thus judicial process is where philosophy of law becomes an applied, practical philosophy of law. Participants of these processes are parasitizing philosophers of law.
  2. Judicial process is a process where the fight for a dominating, determining –  for the purposes of practice, application – concept of law takes place. It is impossible to determine which of these concepts are right or wrong. It is the matter of judges and other parties preferences that determine which one will dominate and be applied.




 

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