Concepts of justice in Ukraine

Nataliia Kyryliuk

PhD (in Law)

Yuriy Fedkovych Chernivtsi National University,

Department of European Law and Comparative Law

Ukraine

e-mail: n.kyrylyuk@chnu.edu.ua

Concepts of justice in Ukraine.

Only a little is known about Ehrlich`s personal life. He lived in the city, which is called Chernovtsy in Ukraine and was single. Students remembered that no one could compete with Ehrlich in speed walking and he spent almost all the time at the university. E. Ehrlich`s ideas that he expressed in the past are still very important for Ukraine even today.

While watching the multicultural life of Bukovina, Ehrlich noted that "many nationalities live together: Ruthenians, Romanians, Germans, Jews, Russians, Slovaks, Hungarians, Gypsies. Lawyers with experience can say for sure that all of them have only one the same right, which operates throughout Austria. However, even a superficial view of things would have convinced him that each of the nations follow the legal bases during the daily routine. Ancient principle of individuality in law still continues to live in reality, but it is only in shadow of the territorial principle.^[1]

In E.Ehrlich`s legal doctrine a holistic concept of justice was not developed, but his understanding of the term is formally incorporated in the theory of "living law." Syncretic unity of law and justice is manifested primarily in sociological approach to the definition of these concepts. Justice, according to Ehrlich is a "social force, and speaking of that force, it is always said about its power and if there is enough of this power, to achieve their goals to those who follow the rules of decision laid down in lawyers’ rights and law.^[2]

However, he did not consider the "inner sense of justice of judges"  to be very important. Ehrlich did not deny the impact of legislation as a source of law on the activities of a judge, but he stressed three essential factors of influence on court decisions, the administration of justice.

The first factor – value of judgments in judicial interpretation. Ehrlich indicates the presence of normative assumptions about the need of "correct" decision. So, he does not agree with those, who deny this factor in legal proceedings.

The second factor - social and historical context of the case. Each case should be examined according to its historical and social context. For the judges the circumstances of each case are "coefficients of social tendency" and therefore the judge must at least partly rely on the prevailing at the time decision tendencies or social conditions. Ehrlich believed that the open recognition of the social and historical aspects of law enabled judges to have a better understanding of lack of legal norms in time and space and freed them from "heavy chains" of technicalities.

The third factor - "the identity of the judge." Ehrlich considered it a significant factor in every justice, and in particular in free justice. Freedom, judge`s freedom by Ehrlich - a conservative freedom of responsible attitude to legal development, judge`s concern about the proper personality. This "personality" comprehensively consider all factors such as written law, historical and social context, sees "living energy" in law.. This aspect is worth looking in more detail.

Today in Ukraine it is often noted that one of the guarantees of fair justice (judicial independence) is funding the courts, its "special procedure", "sustainable security" that is part of "a mechanism for protection of the judiciary." Thanks to the solution of the problems of financing the judiciary and social security, it is hoped to ensure the unity of the judiciary, improving the status of judges in Ukraine, further strengthening of their independence, increase of legal immunity of judges from undue influence and the development of a democratic society, building legal state, is a prerequisite for adequate protection of constitutional rights and freedoms of man and citizen.^[3] Judicial independence first of all consists of the independence of justice, being unrelated to any circumstances and other things during the administration of justice, except the law. Defined by the Constitution and laws of Ukraine guarantee of judicial independence as a necessary condition of justice impartial, fair and impartial court should actually be provided. Therefore, in our view, reducing the guarantees of judicial independence in case of adoption of new laws or creating amendments to existing laws is unacceptable. On the State Budget of Ukraine Expenditures for the maintenance of the courts are separately defined. Settlement of the distribution of funds between the courts and judges, who are worthy of funding, and protection from the pressure of the various branches of government will once and for all solve the problem of real independence of judges.

Believing that "there is no other guarantees of justice, except the personality of judge," Ehrlich said that only when the judge is given the freedom you can expect from him responsibility for the "injustice". Unlikely from the technicalities, free school law is not saving from the removal of a judge from responsibility for the decision, appealing to the "correctness" of the legally established legal fictions or "simple" implementation of the intentions of the legislator. The judge, according to Ehrlich, should be responsible for their own decisions, which are possible because of his freedom. According to Ehrlich such freedom had a clearly conservative character.

Now in Ukraine we can talk about the desire to enable and ensure the independence of courts and judges (financial, ideological, etc.) as noted above. These are the factors of promoting freedom, but are they internal factors? Will they make it possible (and indeed whether there is such a desire and need to) for "more freedom" of judges in judicial decisions to exist? If judges can have "greater freedom" judge, will depend on "the principles of judicial tradition", the characteristics of the legal system of Ukraine and, of course, on the level of "personality of the judge", which Ehrlich was talking about.

According to L.M. Moskvich, knowledge, abilities and skills - a kind of technological basis of personal professional capacity of judges. Without them he could not successfully carry out professional functions. The development and activation of knowledge and skills related to the process of creativity. Therefore, the importance of the creative component of professional judges, and therefore in the structure of his personal professional capacity is hard to overemphasize. Creativity stimulates judge's desire to achieve excellence in professional activities. As reasonably argued by L.M. Moskvich, creativity of the judge is determined by his ability to look at individuality and personality of the case and be able to find the generality, abstraction and typicality of the legal standards.^[4] Thus, the judge creates a common unity of universal of abstract and concrete. To do this he must be active and have the mobility of cognitive processes, intelligence, flexibility of thinking, erudition, analytical and predictive capabilities. After all, if the judge has low mental capacity, no intelligence and cognitive activity, poor memory, no motivation to succeed at work, indifference to the profession, etc., his activities will not be creative, and therefore effective.