Law and the Legal System

The nature of Law is so complex that a precise definition is difficult to provide. In general law is a set of values, instructions and concepts that permit civilization to exist and people to live orderly lives.

There are dozens of ways to categorize law. The following four-fold classification scheme is proposed: substantive, jurisdictional, governmental and structural. Substantive law deals with human conduct and includes the broad areas known as criminal law and civil law. Jurisdictional law deals with the power of political entities. Governmental law views law in terms of the branch of government – executive, legislative or juridical, that created it. Structural law classifies law by the person, group or institution to which it is addressed.

In the USA there are four major sources of law: Constitutional Law, Statutory Law, Administrative Law and Common Law.

Constitutional law is the supreme law of the land and regulates the different branches of government. Statutory Law is created on the federal, state and local level as administrative regulations and judicial decisions. Administrative regulations are promulgated by government agencies pursuant to power delegated by the legislatures. The common law, or “unwritten law”, is the body of law that originates (emanates) from courts through judicial decisions.

Task 17. Read and translate the text. Answer the following questions

Serving the law Ukrajina Incognita

Any society sooner or later grapples with the problem of judicial power, an indicator, among other things, of the development of a state ruled by law. At different times this power could belong to a monarch, who used it to strengthen his supreme authority, be subject to outside control and answerable to the executive power, or, on the contrary, break away and assume self-sufficiency. These stages of development were designed by historians and philosophers, who offered their ideas to society with the noble aim of improving the judicial power, so that it could promote fairer social relations. Among them were Thomas Hobbes, Charles Louis Montesquieu, Mikhail Speransky, Max Weber, and Karl Popper.

In many ways the current judicial system resembles the one that juridical officials proposed in 1864 to society, including that of Ukraine, by convincing the Russian emperor of the urgent necessity to reform the old court. Historians still think that the judicial reform was the most democratic of the Great Reforms of the 1860s.

It would be naive to give all the credit to Alexander II alone, although it is equally wrong to deny the emperor's personal influence on the viability of this reform. The most important point is that he rejected Peter I's concept of a police state, which involves coercive policies and practices.

Many of the judicial reform drafts, which experts and the public were discussing at the time, showed the same problems of the judicial power that we have now, for example, legal guarantees for a market economy, ownership rights of the state and the individual, and strengthening of the political order.

What element of the mid-19th-century court system did not suit contemporaries, including professional lawyers? Introduced by Catherine II in 1775, the system was based on German standards and the European tradition of an estatebased division of society, in which each estate had its own courts with two levels - higher and lower.

The nobility was granted the right to refer housing and property problems to superior and lower zemstvo courts (earlier, they had to turn to administrative bodies in such cases). The middle classes were supposed to bring their lawsuits to municipal and provincial magistrates, and town hails. Free peasants used the services of higher and lower rasprava (courts presided over by justices of the peace), while serfs were at the mercy of landlord's courts.

No matter how hard the empress tried to separate administrative and judicial functions (not surprisingly, Montesquieu's L'Esprit des lois ('The Spirit of Laws") was her coffee-table book), she tailed. Judicial and administrative powers remained merged even on the lowest level.

Every district had a lower zemstvo' court composed of an ispravnik (county police chief) and two assessors elected by nobles, which oversaw public order and tackled land-boundary disputes and other minor cases.

At the end of this rather complex base network stood state-run all-eslate criminal and civil judicial chambers subordinated to the Senate, the highest appellate instance, and, finally, the emperor. Court officials were partly elected, particularly by the corporation of nobles, and partly state-appointed, but in either case they were not professionals. Supervision of justice, which also included influencing verdicts, was exercised by the executive power in the persons of governors and chief representatives of the crown. Requirements for judges were not so stringent, though: all they had to do was enforce the laws made by the monarch.

Those who occupied the posts of judges were, as a rule, ex-military servicemen who did know the law, took no interest in justice, and had nojudicial experience. They considered it their duty to follow the supreme authorities' instructions and were inclined to regard laws as orders from the supreme command, which naturally did not require any professional knowledge.

To prevent judges from flouting the legislative norm, there was written inquisition-type justice based on formal evidence. Admission of guilt was considered the ultimo ratio, for which torture was allowed. The parties to a trial only dealt with the court secretary, who alone knew the laws, rules, forms, and paperwork procedures in order to resolve the case in a desired manner.

His duty was, in fact, to mechanistically quote the laws from his own reference notebook. According to contemporaries, it did not take a secretary too much effort to "adjust" the laws to the demands of rich or influential individuals.

This led to slow trials, incompetence, corruption, nepotism, delays, and pettifoggery, and as a result the judicial power enjoyed no prestige in society. Likewise, the level of citizens' knowledge of the law was also very low because everything depended on personal and family connections, and the protection of high officials in St. Petersburg and the emperor himself.

The judicial system began to be revised in the atmosphere of the humiliating defeat in the Crimean (Eastern) War of 1853-56, which also triggered other major reforms. The initiative belonged to professional lawyers whose number was growing with every passing year.

Educated at Russian university law schools, they were gradually upstaging lay judges. They also differed from their predecessors by social origin and occupation: they were middle-Income nobles, who did not consider military service as the most perfect career and in their milieu began to cultivate service to the law as the highest moral vocation. Young jurists displayed hitherto unusual adherence to the law on the basis of the philosophy of law, and knowledge of jurisprudence and legal practice, and introduced the idea of professional honor into Russian justice.

This attitude appealed to the post-reform nobility, which badly needed a new type of court capable of defending property rights that were weakened after they lost power following the abolition of serfdom. Under pressure from both parties, Alexander II did not oppose reforming the court

He refused to set up this institution in areas other than St. Petersburg, Moscow, and Kharkiv, which already had bar councils. Instead, the government established the institution of private counsels, who did not have to meet any educational requirements. This led to the formation of a widespread legal underground.

Another shortcoming of the judicial branch was that it failed to draft a judicial procedure for prosecuting officials who infringed the rights of private individuals. These cases remained the preserve of the Senate and perpetuated the old pattern in which every bureaucrat served the monarch, not the populace. The root cause of this flaw was that the empire patterned its administrative justice on the continental system of tribunals, where the administration itself performs judicial functions, rather than on the Anglo-Saxon system under which administration was subject to independent court action.

Repeated attempts to bring public administration in line with legal norms encountered resistance from Alexander III and Nicholas II. As a result, the judicial branch failed to achieve full independence from the executive power until the last years of the /Russian Empire: the two branches were in a state of permanent conflict.

By Valentyna SHANDRA, Ph.D. (History)

1. What do historians think about judicial reform of the 1860s?

2. What was Alexander II personal influence on the reform?

3. Can you name the problems of judicial power at the time?

4. What standards was the mid-19th century court system based?

5. Who occupied the posts of judges?

6. What prestige had trial in society?

7. Did initiative of judicial reform belong to lawyers?

8. Did government do a real reform?

9. What was another shortcoming of the judicial branch?

10. Did judicial branch receive full independence from the executive power?