3. Sources of Ukrainian law
In jurisprudence and legal practice, the term "source of law" means, as a rule, significantly, and is sometimes used as identical to the term "form of law". But for lawyers, it is important to be able to clearly distinguish between these terms for the proper use of it in the forms of law enforcement.
The term "source" of law is deeply rooted, and therefore has many meanings:16
- Factors contributing to the emergence, development, maintenance of law: a system of socio-economic relations (material understanding);
- A set of legal ideas, opinions, theories, under the influence of which is formed and functioning right (idealist conception);
- Historical monuments: Russian Truth in Kievan Rus, Hammurabi in Babylon;
- Methods of external expression and consolidate the rule of law (specifically, legal awareness) (this is the actual form of law).
The main sources of (forms) of law in countries around the world and in Ukraine:
- Regulatory Act;
- The international legal act (the dominant is the contract);
- The legal precedent (judicial and administrative);
- Legal custom;
- Legal doctrine (doctrinal text);
- Religious and legal text (religious-legal norm).
There are three main types of sources of law:
Normative legal acts – the official documents containing legal norms (as well as provisions to cancel or change the existing rules). These include Russia's laws, regulations decrees, resolutions, and other normative documents of the President, the Government.
Authorized customs – included in the habit of rules that the state has given obligatory value, and the observance of which it ensures its coercive power. The sanction of the state, which gives legal customs, obligatory value is given either by reference to customs of the normative act, or the actual state recognition of judicial decisions and other acts of state bodies.
Judicial or administrative precedent – a judicial or administrative decision on a particular legal case that is made obligatory legal value.
Principles of law cannot represent the original sources of law due to the fact that by its nature is not set right, and describe (concretize) established rules, also because of the existing legal provisions, that is formed through practice.
Legal act – an official written document adopted by authorized rulemaking subject to some form of legislation and on the statutory procedures aimed at regulating social relations, which includes the rule of law is impersonal in nature and is designed for repeated use. The Constitution is the foundation of the legal system of our country.
The Constitution is a single codified act, fixing bases of the organization of state power in Ukraine, governs the relationship of the government, society and the individual, and has supreme legal force (Art. 8 of the Constitution of Ukraine).
Higher legal force of the Constitution reflected in the fact that:
Firstly, its norms have priority (the rule) to the norms of other (conventional) law, and even more so to acts of executive power and other regulations in force in the territory of Ukraine. Supremacy of the Constitution applies to international treaties, as evidenced by the provision of Article 9 of the Constitution, which states that "the conclusion of international treaties that contravene the Constitution of Ukraine is possible only after making appropriate changes to the Constitution of Ukraine";17
Second, the rules of other laws and regulations must be based on the Constitution and shall conform to it (Art. 8 of the Constitution of Ukraine). Any act contrary to the Constitution (in content or form), may be declared invalid. Supreme legal force in the country's Constitution provides a special procedure for amending it and the special protection of the Constitution, the crucial role which belongs to constitutional justice.
Social purpose of the Constitution, its place and role in the legal system of Ukraine specified in its functions – the main directions of the impact on social relations. Functions of the Constitution reflect the main ways of its impact on the development of the state and society in modern conditions Ukrainian national revival. Functions embrace and actually extend to all the areas of public relations, which are regulated by the Constitution and its contents are covered.
The legal function of the Constitution is that it is the fundamental law of the country which has the highest legal force and is the main source of law and the entire legal system of Ukraine. Constitutive function of the Constitution is that it found its most important political consolidation and socio-economic institutions of the state and society. An example of a constituent character can be enshrined in the Constitution of Ukraine, the existence of such institutions as the Ukrainian Parliament Commissioner for Human Rights (Art. 85). High Council of Justice (Art. 131), the Constitutional Court of Ukraine (Chapter XII) and several others.
The essence of the regulatory functions of the Constitution is laid down in its rules of constant public relations and guarantees their compliance (static function) and the definition of the social relations that are at the stage of its development (dynamic function).
Nature and significance of the law enforcement functions of the Constitution is that it provides for the requirements for the implementation and realization of its norms and institutions. The mechanism of law enforcement function includes both organizational and legal forms (the activity of the Constitutional Court of Ukraine, the Parliamentary Commissioner for Human Rights), and the application of the constitutional sanction: removal from office by the President of Ukraine through the impeachment process, reviews, termination of powers of deputies and state authorities (distrust of the Cabinet Ministers of Ukraine) and others.18
The political function of the Constitution is that it determines whether the authorities in the country of the people, the foundations of the state and society, domestic and foreign policy, and the like. The Constitution defines the basic forms of exercise of democracy – elections and referendums, the local self-government.
At the same time, the system functions of the Constitution as the Basic Law and socio-cultural phenomena of modern society is not limited to legal and political functions, but also has economic, ideological, information, pedagogical and educational and other functions that comprehensively characterize its social purpose, place and role in modern Ukrainian society.
Normative-legal acts have certain advantages over other sources of law; they are characterized by the following features. They are: always contain general provisions, that is, the legal rules that apply to a certain kind of social relations; accepted only clearly defined law-making subjects and within their competence; taken in compliance with certain legal procedures; accepted subjects of law-making in the form specified for each of them by the Constitution and laws of Ukraine; are required to perform system-provided state guarantees, including coercive means; act in time, during which the legal act is legally binding, the space that is subject to a regulatory act and number of persons falling under the influence of a regulatory act and on the basis of his gaining subjective rights and legal responsibilities.
Legal precedent – a source of law, is a written or oral decision of a judicial or administrative body, which is provided by the state formal commitment, and it is becoming the norm, the standard, a model for the consideration of all such cases in the future. Close, but to some extent different, can be considered a source of jurisprudence.
Legal (authorized) custom – state-sanctioned rule of conduct historically, as a result of frequent repetition of certain actions by people. Authorization is made by reference to the custom, and not to secure it in textual legal act.
Regulatory contract (including an international agreement) – a bilateral or multilateral transaction containing the rule of law. Contracts with normative content, unlike most individual legal agreements (sales contract, employment contract, marriage contract) always contain general rules of conduct and do not have a personalized, one-off.19
Religious texts – documents containing a church canon or other religious norms, intertwined with the norms of morality and law, sanctioned by the state to make them compulsory values and provide them.
Legal doctrine – the origins of this law, its sources, published work of lawyers who have been universally recognized.
Principles of law – these are the main ideas, assumptions, which are enshrined in the law, have a general significance, the highest imperative (commandment) and reflect the substance of the law.
Formation of the modern legal system – a complex, lengthy, multi-process, and therefore requires a proper analysis. Circle of relations, which are subject to any legal act, always the subject of legal regulation, otherwise the act would not be legal, that is, so that the interests of society.
That is why it is so acute in Ukraine there is a question of lawmaking. It is important from the point of view of the state of legislative activity at a certain current stage of development and justification of the law with regard to social phenomena and changes in social relations, progressive or negative, which require their legislative consolidation. The practice demonstrates the need for fundamental changes in this field, a combination of deep fundamental research with application development, comparative analysis of legislation and legal reform.