Democracy as one of the fundamental bases for the implementation of legal guarantees of human rights in Ukraine

The author of the article objectively argued the real importance of realistic instruments of democracy for the modern state formation of Ukraine. One of the most progressive mechanisms for implementing state policy in the field of protection, protection of human rights through their legal guarantees, progressive integration of democratic standards of the international community into the sphere of political and jurisprudence of Ukraine is the active introduction of new levers of democracy. We are convinced that the rules of law governing public relations must meet the challenges of today, and most importantly, be united in the desire of civil society to fully realize the objective demand of the people of Ukraine for justice. The agenda of Ukraine’s strategic priorities is extremely voluminous and endowed with a strong public resonance. That is why the means, the methods of activated democracy, are a potentially effective recipe for reducing the amplitude of public tension. The urgency of the issue of democracy was justified not by political slogans and the popularity of this subject of scientific research, but solely through the prism of the critical need for functional implementation of legislative, procedural guarantees of human rights in Ukraine. After all, in the conditions of modeled totalitarianism, authoritarian system of state policy, prohibitive measures that will be aimed at reducing or eliminating the will of the people, the full implementation of the full range of legal guarantees of human rights will lose its effectiveness. In our opinion, the level of democratic multi-vector practical implementation of the people’s power is a litmus test, a truly effective indicator of the attitude of state power to human rights and the rule of law in Ukraine. The author of the presented study carefully analyzes such institutions of democracy as the initiative in law, the legislative initiative of the people of Ukraine and the procedural implementation of the proposal to hold an all-Ukrainian referendum at the initiative of the citizens of Ukraine. After analyzing the doctrinal component of the initiative in law, we professionally turned our attention to the following fundamental issues: a) joint consolidation of civil society around the following fundamental principles: inviolability, respect for the human rights of everyone; Rule of Law; trust; desire to seek and find a compromise solution to conflicting precedents; b) personal, characterizing the characteristics of the individual who is able to propose legislative initiatives and demonstrate their own responsibility for this process; c) the issue of activating civil society, with the aim of individual, targeted stimulation of their representatives for further motivational training, professional training and formation of a constellation of leaders of local, regional and national level. In the article research, the actual factors of normative implementation of the legislative initiative of the people of Ukraine in the Verkhovna Rada of Ukraine are considered in detail. The author of the article analyzed the presented subject of the dispute from the point of view of historical preconditions and attempts of parliamentarians to consolidate the people of Ukraine, a full-fledged institution of legislative initiation. In addition, within the framework of the outlined topic, an analysis of the current Draft Law on Amendments to Article 93 of the Constitution of Ukraine (on the legislative initiative of the people) of 29.08.19 was conducted and subjective opinions were provided on the basis of its substantive presentation. In our opinion, for a comprehensive, normative settlement of really important issues of the legislative initiative of the people of Ukraine, it is necessary to adopt an independent, purposeful Law of Ukraine with the relevant subject of jurisprudence. In the context of the study of progressive, legal norms on the vector of the idea of democracy, the main innovations of the Law of Ukraine «On Democracy through All-Ukrainian Referendum», signed by the President of Ukraine on 08.04.21, concerning the implementation of electronic voting and legislative plans areas of application of innovative technologies for electronic (machine) voting and legislative initiative of the people of Ukraine. We are deeply convinced that such an intensifying interest of the scientific community and people’s deputies of Ukraine in the issue of democracy in our country inspires us with optimism and confidence that the initiated legislative initiatives will have their practical success in the process of daily regulation of public relations. Keywords: people of Ukraine, democracy, initiative in law, legislative initiative, democracy.

Ideological manifestations of Christian-legal traditions in the legal system

The process of development of various directions of objective scientific analysis of problems of the theory of the state and law is investigated; the analysis of transformational processes of Christian-legal traditions in the legal system is carried out. The author argues that the Christian legal traditions are a unique religious and social value, because they embody the fundamental principles of civilized organization of religious relations in society, their regulatory requirements. Christian legal traditions generalize national law at the level of the legal space, reflect the unity of the legal system, which fixes the legal individuality and identity of the country, which affects the formation of the national idea. The author notes that in modern society, Christian legal traditions, Christian legal traditions appear as a legal category, a phenomenon of legal culture, an element of the legal system and a component of the succession of law, which captures generalized legal experience, legal memory, legal knowledge and legal ideas. passed down from generation to generation as acceptable ways of organizing society, models of formation of the legal system, order in law, hierarchy of values in law, etc. The point of view that Christian-legal traditions can be characterized from the standpoint of traditionalism and modernism is substantiated. Socio-historical heritage is a liability of past traditions and a basis for the formation of new traditions. In general, modern society is characterized by the action of real Christian legal traditions, which combines authentic and non-authentic Christian legal traditions and socio-historical heritage in ensuring the heredity of social development with its previous stages. Authenticity is determined by the preconditions for the formation of Christian legal traditions in society, arising from the laws of the stages of its development. Inauthentic Christian legal traditions are created artificially and act as declared social norms that have not yet confirmed their value nature in the course of social practice. They are most often observed in societies undergoing transformational periods of their existence, during which there is a need for new methods of regulating social relations and means of community unification. Such Christian legal traditions can be used to fill gaps in the mechanism of social and normative regulation of social relations by connecting the past with new conditions and needs. In addition, Christian-legal traditions occupy an important place in the socio-normative organization of modern society, and during the historical process of development of society the content of Christian-legal traditions was influenced by ideological, cultural and socio-economic deformations of society. Christian-legal traditions as religious-normative principles ensure the realization of Christian-legal ideals and values in religious relations, their indisputable status in public life. Keywords: legal system, Christian-legal traditions, legal heritage, traditionalism and modernism, legal culture, legal consciousness, authentic and non-authentic Christian-legal traditions.

The history of the emergence of ideas about the principle of reasonableness in the mechanism of interpretation of law

The issue of the history of the origin of ideas about the principle of reasonableness in law occupies a central place within the study of historical and legal aspects of the principles of law in general. The author proves that the ideas about the principles of law in general are marked by the historical duration of their formation and development, and today the legal doctrine is represented by a wide range: a) worldview and scientific ideas of thinkers of antiquity; b) various theoretical and practical ideas of philosophers of the medieval period; c) scientific works of the Modern Age and the Enlightenment; d) innovative concepts and theories put forward by modern philosophers, modern jurists, political scientists, philosophers and scientists (both representatives of legal sciences and other branches of scientific research). In addition, the paper analyzes the history of the origin of worldviews and scientific ideas about the principle of reasonableness in law, as well as identifies the factors that led to its separation as an object of scientific knowledge. It is substantiated that thinkers of the Antiquity period comprehend and reveal the ideas of reason in law (law) through a set of other concepts and categories that form a connection with this ideological principle, namely: the logos, which is defined as the eternal world order; law, legislative activity as a manifestation of the logos, the ability to formalize the logos; wisdom as a result of education and human experience, public interests and balancing the interests of various subjects of social relations; common sense, etc. Summarizes the position that in the views of thinkers arises and develops the worldview that law is a product of mental human activity, which should be educated, vitally wise, and therefore able to think, analyze the objective needs of society, distinguish between «good» and «evil». This idea became a component of sophistry, which later in the views of Roman jurists expanded and rethought in terms of lawmaking and law enforcement on the mental abilities of man, who invest in the content of laws rational ideas and able to understand and apply them with the mind. It is stated that despite the fact that in the legal teachings of antiquity the principle of reasonableness in law has not yet become an independent subject of worldview or scientific understanding, nor has it been singled out as a separate legal category, it should be noted the research interest of ancient thinkers in development and improvement law, its nature, essence and functional purpose, actions and effectiveness, which are understood, including through the prism of ideas about human wisdom (mind), rationality in law, features of the implementation of law in human consciousness and behavior. Keywords: law principles, functions law principles, principle of reasonableness in law, role of principle of reasonableness in law, system law principles.

Approval of the principles of a democratic political regime in the constitutional process of modern Ukraine

The article is devoted to the establishment of the principles of a democratic political regime. The realization of the constitutional process is given by the state-building and law-making chance for the modernization of the constitutional order, which opens a perspective for the development of civil society-oriented civil society-oriented civil society. The process of democratization at the present stage is associated with a significant improvement in the system of organization and interaction of certain elements of the branches of government and the improvement of the form of government. Today, it is a recognized fact that there is a close connection between the form of government and the democratic political regime. The article maintains the idea that a democratic political regime is unthinkable outside the interaction between the state and civil society. Civil society is becoming a positive, constructive force, which can limit the state with its independence, and therefore is extremely important for the development of democracy, because it is able to limit the arbitrariness of the state and retranslate the relations to the public. Under a democratic political regime, the parameters and limits of state intervention are determined by the needs of civil society. In this context, constitutional changes should relate to changes in the constitutional system – a category that includes the basics of state and social order of Ukraine. Keywords: Ukraine, democracy, democratic political regime, constitutional process, form of government, civil society, state.

Variety of theoretical approaches to legal interpretation

The article explores the variety of theoretical approaches to legal interpretation. It has been determined that the variety of approaches to legal interpretation is due to the complexity of the nature of the origin of this phenomenon, the conditions for the development of post-non-classical science, and the recent influence of the paradigm of comparism, which assumes pluralism of opinions and ideas in legal research. It was found that in modern science there are four traditional theoretical approaches to the essence of legal interpretation. It has been determined that the content of the first approach is revealed within the framework of legal hermeneutics through a number of categories. The essence of the second approach (formal dogmatic or static) is expressed in the fact that the subject of interpretation must strictly and rigorously follow the letter of the law, establish only the meaning of the normative legal act, which the lawmaking body enshrined in it at the time of the publication of the act. That is why normative legal acts cannot, through interpretation, adapt to the changing economic, social, political, cultural internal and external conditions of public life. It is proved that the essence of the dynamic theoretical approach lies in the fact that the subject of legal interpretation adapts the normative legal act to the changes that occur in various social relations. It was found that there is a contradiction between the dynamic and static approaches in legal interpretation, which is reflected in the traditionally called objective and subjective theories of interpretation. According to the subjective theory, the purpose of legal interpretation is to establish the «will of the legislator», and according to the objective theory – to establish the «will of the law». It has been substantiated that the essence of the activity approach is that interpretation is considered as a special kind of legal activity aimed at understanding and clarifying the content of legal texts. The authors of this article point out that in order to establish the true nature of legal interpretation, the methodological foundations of the study should be presented much broader and more diverse, and not be limited only to traditional approaches. When studying it, a comprehensive, integrative approach is needed, which, based on the relevance of interdisciplinary relationships, would include logical, language (linguistic), philosophical, sociological, psychological, axiological (value), ethical, legal, historical, economic, political, mathematical and other substantiation of legal interpretation. Keywords: diversity, theoretical approach, legal interpretation, interpretive practice, integrative approach

Interrelation of theoretical concepts of jurisprudence and legal practice (using the example of the category «legal subjectity»)

The article discusses the interrelation between theoretical concepts of jurisprudence and legal practice on the exampleof the category «legal subjectity». With an indication of real practical situations, the necessity of implementing the relevant theoretical achievements of legal science in the standards of practical legal activity is justified. It is noted that at the level of practice the integral content of legal categories, principles and other theoretical concepts of jurisprudence is inevitably operationalized and takes the form of terms. At the same time, the requirement for the unambiguity of the latter creates a constant need for practice in interpreting their content. The correct interpretation of the terms involves a combination of the achievements of theory and practical experience. Deviation from this rule leads to errors in terminology and mistakes in the interpretation of law. Attention is drawn to the need of using in the texts of judicial, administrative, contractual, and other documents the correct wording on the legal subjectity of separated units and governing bodies of legal entities. The contradictions of the notion of «complex legal entity» are also highlighted. Examples are given of how the legislative acts of Ukraine in some cases do not correspond to the basic principles of the legal entity institution, allowing the existence in the internal organizational space of legal entities of other legal entities. It is emphasized that this status of structural subdivisions of organizations and public authorities contradicts the need to ensure their organizational integrity as subjects of law, endowed with a complete kind of legal subjectity, namely «personal legal subjectity». Keywords: theoretical concepts of jurisprudence, category «legal subjectity», legal entity, personal legal subjectity, structural division of a legal entity.

Interpretation of law by the court as an element of legislation

The article examines the problem of the essence and content of judicial interpretation, its characteristic features. The goal of a casual court interpretation is the correct understanding of the content of the norms of law, and the task is to individualize legal regulations. Acts of casual court interpretation are «samples» for lower courts, given that they are always guided by the practice of interpretation. The article also deals with the theoretical aspects of the institute of interpretation of law by court, its gist, and legal nature; explores the views of the Ukrainian and foreign scientists on the subject. The article also deals with relevant to modern legal practice issues of judicial interpretation. The peculiarity of the casual interpretation is that it has a person-oriented character and is relevant to specific circumstances. A casual interpretation can not go beyond the boundaries of a particular legal case and apply to similar cases. The difference between the normative interpretation and the casual is that the former may extend to an unspecified range of cases, and the second one to the incident that was the subject of a dispute. Subjects of casual interpretation are the judicial and administrative bodies. Clarification of the content of the law by the judiciary is a judicial interpretation. The official constitutional interpretation of the Constitutional Court of Ukraine is carried out in providing opinions on cases of constitutionality of laws and other legal acts, compliance with the Constitution of Ukraine of international treaties, adherence to the procedure of investigation and consideration of the case of removal of the President of Ukraine from office in the order of impeachment. The supreme court’s interpretation of the case largely influences judicial practice. Courts, in court cases, carry out a casual interpretation of the rules of law and develop case-law on the application of the rules of law. The casual judicial interpretation is the interpretive activity of the court in the process of reviewing and resolving court cases (or in the order of their review by the appellate or cassation instances), the purpose of which is a correct understanding of the content of the legal norm. His task is the individualization of legal requirements, and the result is binding only for a specific court case and parties involved in it. The acts of the casual interpretation of the higher judicial bodies are «samples» for lower courts, given that they are always guided by the practice of interpretation and application of the law by the highest judicial authorities and, as a rule, follow it. Characteristic features of the casual judicial interpretation is that its subjects are judges of all courts, it is directed at the consideration and resolution of a particular court case, the results of such an interpretation are binding only for the parties to a specific court case and are fixed in the motive part of the decision. Keywords: court, casual interpretation, the rule of law, judicial interpretation, rule.

Law and its interpretation in the context of cultural and historical process

The article attempts to substantiate the approach to law as a socio-cultural phenomenon as decisive for its interpretationтin the historical process. P. Bourdieu’s formula «law is cultural capital» is offered as a starting point. Attention is drawn to law as a socio-cultural phenomenon, legal values as cultural and spiritual values, legal tradition, etc. Attention is drawn to some provisions of Dvorkin’s interpretive theory regarding the conditionality of the content of legal norms by political (strategies pursued by legislators through norms) or moral (principles implemented by judges in resolving conflicts in society) factors. It is concluded that to interpret the law in historical retrospect, when it comes to mastering the legal experience of a society accumulated over the centuries, the most productive, considering and researching law as a socio-cultural phenomenon. Culture, the core of which is values, as a collective programming of consciousness, which distinguishes members of one group or type of people from another (according to G. Hofstede), which includes law, determines the level of implementation and collective life of people in society / state, their social integration and social reproduction in general during a certain historical period. Keywords: law, socio-cultural phenomenon, cultural-historical process, interpretation.

The influence of socio-political events in Europe in the XVI-XVII centuries on the development of legal doctrine of Modern history

In the history of the country’s development there are periods in which significant changes in social, political and economic life take place. These undoubtedly include the period of the European Reformation of the XVI-XVII centuries. Socio-political events in critical periods are at the same time the source of development in the legal sphere, when often in the struggle crystallize new, necessary for the development of the state, legal provisions of a doctrinal nature. The aim of this paper is to analyze the socio-political events in Europe in the XVI-XVII centuries, the results of the Thirty Years’ War and the significance of the Peace of Westphalia in 1648 in terms of influencing the development of legal doctrine of Modern history, and also to provide a comparison with the peculiarities of the socio-political situation that took place in the Ukrainian lands of that time. It is noted that since the beginning of the XVI century. almost the entire world of that time was covered by the Reformation. First of all, it was a broad socio-political movement that took the form of a struggle with the Catholic Church. Against this backdrop of socio-political and economic change, Protestantism has become widespread throughout Europe, associated with the names of Martin Luther, Jean Calvin, and Ulrich Zwingli. At the same time, the Catholic Church and the Jesuits opposed the Reformation and led the Counter-Reformation. The result of this confrontation was the Thirty Years’ War - the first pan-European war of 1618 – 1648 between the Catholic Union and the coalition of Protestant states. In European history, this war has remained one of the most terrible European conflicts. Historians estimate that more than 2 million military and more than 6 million civilians were killed. Thirty Years’ War in Europe in the XVII century. ended with the signing in 1648 at the same time in Münster and Osnabrück peace treaty, which was called the Peace of Westphalia in 1648. It is emphasized that the Peace of Westphalia contains a number of provisions of a doctrinal nature. It is made conclusion that this treaty was the source of modern international law and had a long-term impact on the development of relations between states. Among the most important principles of doctrinal nature are the following: state sovereignty has become a universally recognized legal category; the principle of freedom of conscience is recognized with certain restrictions; the idea of sovereignty and independence of each state was opposed to the idea of a single Christian community; proclaimed the idea of ensuring certain human rights, especially the principle according to which private property and the rights of citizens of a hostile state could not be changed by war. Ukrainian ties with European events of that era also took place. This was reflected in the text of the Treaty of Osnabrück, where Ukrainians are noted as allies of Sweden, and the Treaty determined the relevant international legal status of Transylvania at that time. It is noted that the period of the Reformation coincides with the events in Ukraine, as a result of which the Ukrainian Liberation War began, led by Bohdan Khmelnytsky. Keywords: European Reformation, Peace of Westphalia, legal doctrine, origins of law, the Revolution of Bohdan Khmelnytsky.