A CRITICAL LOOK AT THE POLICY OF LAW IN THE CONTEXT OF THE REFORM OF THE CIVIL CODE OF UKRAINE (SOME METHODOLOGICAL REMARKS (original) (raw)

I. Introduction or what modern civil law owes to the past Civil law, in terms of its content and form established in the 19th-21st centuries, is a phenomenon of Continental law. Herewith, the content of law for Continental law is thought of as a set of permissions, prohibitions, obligations, rewards and recommendations that legal order recognizes as necessary to approve, put into effect and protect in a society existing in a specific historical dimension. The law of states that experienced in the 20th century the powerful influence of the totalitarian socialism practices and legal doctrines justifying such practices has adjoined to Continental law. These were, certainly, post-Soviet countries including Ukraine, which are currently in the process of seeking a legal self-identification. The difficulty of legal reforms are predetermined in these jurisdictions, on the one hand, by the intention to find civilizational grounds in the bowels of Continental law for building national legal systems, and on the other hand, by the obvious need to take into account the current experience of convergence as being established in the nuclei of legal orders united by the Western legal tradition common for Continental and Anglo-American law. At the same time, even a cursory glance at the law of these states suggests a growing trend towards the formation of more "technocratic law": legal acts here are increasingly being developed in the technical documentation style, rather than as the legislation designed for implementation in the context of the legal equality for the legal communication participants. This trend, according to William Elliott Butler, is largely motivated by the "lack of a clear doctrine and principle on the inadmissibility of state intervention in the sphere of social life 1. The mentioned tendency is taking place against the backdrop of technological changes which in turn lead to a weakening role and importance of a free scientific discussion and an increase of normative texts. It should be noted that these trends are particular for Ukraine, and this requires special research. It seems the fair point that "Ukraine is one of the technocratic legal systems" 2. Western legal tradition arose as a result of autonomous socio-cultural processes that had had a revolutionary character characteristic only of European culture. Initially, the Western legal tradition was based on a synthesis of reformed Roman law (Ius commune), ancient philosophy and Christian theology 3. Assessing critically the components of the Western legal tradition "matrix" (in the version of Usus Modernus Pandectarum), we note first of all that the content, being considered close to reality, and the spirit of Roman law are not really revealed "at the stage of the pandectists". And it is by no means in the jurisprudence of concepts that one should see "the reproduction of the positive content of Roman law" and, even more, "the way of thinking of Roman lawyers" 4. On the contrary, the evolution of Roman law, its ideas became understandable only after the practical implementation of working-out of pandectists who had rejected the glossators and commentators' ideas in Civil codes of the New Age (first of all, on the permissibility of sharing legal dominance between personally dependent individuals). In other words, only the termination of Roman law (before this it had undergone three stages of revival) in almost all jurisdictions relating to the Western legal tradition, its ideas could be understood and used, but, as a rule, only as an introduction to modern private law. This is in the best case: there were extremely few knowledge holders of Roman law tradition on the continent. Thus, we should agree with the Reinhardt Zimmermann's view that "… the high hopes and expectation entertained at the time of the Enlightenment have not been fulfilled: neither have the codifications made the learned lawyer redundant, nor have they led to a lasting consolidation (ossification) of private law" 5. II. Is the codification of civil law the only true way of the law genesis and law-making? In this regard, the codifications of the 19th-20th centuries being guidance for the Eastern European states should be characterized as anti-feudal law rather than promising "bourgeois law". Especially since modern law must comply with the basic parameters of a post-industrial society. Moreover, historical Roman law with its "casuistic nature of court decisions, the origin of principles and rules of law from cases, the use of the technique of analogies" 6 was much closer to modern case law than to Continental law. The strong idea by Oliver Wendell Holmes that "the life of the law has not been logic: it has been an experience" 7 , turns out that Roman law to be much closer to modern case law than to Continental law. There is also no trace of the Stoics in the modern civil law doctrines: the current worldview and the prevailing private-law political and legal approach are based on utilitarianism and, accordingly, sees in the law by no means a Oleg Khalabudenko. A critical look at the policy of law in the context of the reform of the civil code of Ukraine… 259 Часопис Київського університету права • 2020/2 © O. Khalabudenko, 2020 * Олег Анатолійович Халабуденко, кандидат юридичних наук, доцент, доцент Київського національного університету будівництва і архітектури