Sociological Legal Understanding as a Doctrinal Basis of Judicial Law-Making
| Main Author: | Yu.V. Hotsuliak, T.V. Mikhailina |
|---|---|
| Format: | Article Journal |
| Bahasa: | ukr |
| Terbitan: |
, 2021
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| Subjects: | |
| Online Access: |
https://zenodo.org/record/4625713 |
Daftar Isi:
- The article analyzes the opinion that the sociological school of legal understanding defends the position of the social origin of legal reality the key basic category of law should be the legal relationship. Permits and prohibitions are dictated at the initial level of the human constitution. The more difficult the communication - the more permits and prohibitions, and the more there is a need for arbitrators who are able due to certain qualities (age, education, strength) to resolve possible disputes. The article argues that the doctrine of pure law makes it possible to distinguish the content of a separate orderly legal being to make law as a basis. But any being is always a coexistence, precisely because reality is permeated with connections and there is a need for order.Law is not a "thing in itself", and therefore without its presence in social communication, any of its meaning loses have its meaning. Thus, "pure" law without implementation is "dead". In this regard, the phenomenon of "judicial lawmaking" have a particular importance. It is the judge who is able to "revive" the law to prove its ability and fullness for society. Based on a study of the sociology of law, the author concludes that the legal deduction of the transition from general to specific concerning the implementation of legal norms is impossible without the process of clarifying the content and commenting which can be entrusted only to those entities that are able not only to make but also to implement the norm. The intellectual law-making activity of judges and lawyers in general is able to revive legal norms that were in force at a completely different time in a different society and in different circumstances.Due to a set of unique professional and power characteristics, a judge is called to be a leader of legal norms in time and space. Even if there are no such norms, the law-making mechanism should be launched, as regulatory processes are one of the conditions of life. Dispute resolution like the judiciary is a person's initial social inclinations. In any public order a mechanism of recovery processes is established headed by an "arbitrator". Therefore, the position on the natural origin of judicial power is quite reasonable. Judicial lawmaking is responsible for the temporal component of legal reality.