Як мислять судді
Із традиційною свободою думки, саркастичной аргументовано Ричард Познер береться змалювати не тільки наявну традицію суддівського мислення, а й ту, якою вона має бути. Зрозумілой дотепно автор роз’яснює відмінності між визначеними ним дев’ятьма ііггеллектуальними стилями правосуддя, наводить докази існування прірви між науковцями-нравниками та суддями, окреслює прагматичний підхід до правосуддя.
In the present paper the author discusses in detail some of the transformations in the judiciary of Hungary, being a part of the large-scale constitutional reform. These transformations are evaluated both in terms of their potential effectiveness, and also in terms of compliance with European standards of fair trial. For that purpose, the author analyzes the current rules of judicial legislation in their systemic unity, the critical opinions of the Venice Commission and other expert and human rights institutions, as well as publications in scientific literature and media. The author dwells on three issues: the mechanism of the change of venue of cases, court clerks’ participation in the administration of justice and direct constitutional complaint.
Introduction: the article deals with judicial rulemaking of international judicial institutions. Materials and Methods: the authors made a theoretical and empirical analysis of the main sources of international and European law, the court practice of international judicial institutions, the works of domestic and foreign scholars, analytical documents of international organizations. Results: the article proves that judicial rule- making is well-established international practice which in some cases is especially needed. Judicial rule-making is perceived by the doc- trine as a natural, necessary and legitimate legal phenomenon. In practice two forms of judicial rule-making have developed - judicial rule- making may involve interpretation of both the content of a rule of law and procedural aspects. However, international judicial institutions should strive to refrain from judicial activism and judicial rule-making. It must be borne in mind that the activities of international courts must rely on the support of national courts and the expert community. Discussion and Conclusions: according to the currently prevailing views, which made a decisive impact on the evolution of theory of state and law, judicial rule-making is inseparable from the daily implementation of judicial functions. Both the society and the legislator are in urgent need for it regardless of whether they admit it or not or even act against it. It is necessary in all cases where the legislator does not keep up with the progress of the changes caused by the rapid evolution of society and new opportunities of scientific and technological progress. It is often beneficial for the legislator that the courts should have tested various approaches and have developed a well-established practice, and the application of this practice should have suggested the most rational decisions. Judicial rulemaking developed especially widely in the judiciary of international/regional integration associations and within the framework of international mechanisms with elements of supranational coercion, first of all, in the practice of the Court of Justice of the European Union and the European court of human rights. The whole system of EU law has gained the most features and basic characteristics associated with it thanks to the Luxembourg Court. These features and characteristics include positioning EU law as a system of law that differs from international and domestic law, the supremacy and direct effect, the effective jurisdictional protection, strict compliance with the requirements of subsidiarity and proportionality, etc. In turn the Strasbourg Court has done a lot in order to turn positive and procedural rules of the European Convention on human rights into “a living and developing organism.” However, periods of judicial activism have always been nothing more than a reaction to a request by the states or the need for solving tasks. The last word always belongs to major players who has always been society and legislators. When it is necessary they easily impose certain limitations on judicial rulemaking. It has already been made in respect of the Court of the Eurasian Economic Union in the legal order. However, the Minsk Court faces difficult tasks concerning the application of the EAEU law and on its formation. There- fore, it is important that the Minsk Court should determine as quickly as possible the precedential nature of its decisions, the possibility of using other sources of law, along with the EAEU Treaty and its secondary law, and how to tie up the national legal system of the member states in a common legal space.
In the basis of book lies the dialectical description of the judicial system as a purposeful system having a complex hierarchy and rules of functioning, which is in continuous interaction of its internal elements and external factors of influence, including other branches of government, therefore structural changes of the judicial system in itself, as well as its competence and the quality of justice in general are observed. Consideration by the author of judicial system as an integrated dynamic system allows to reveal a number of regularities in its cyclical development. Society, as it is known, develops in a spiral. Exactly this model of evolution in philosophy arose as a result of the interaction of the three laws of dialectics: the unity and conflict of opposites, the transition of quantitative changes into qualitative, and the negation of negation. The court as a mirror of society repeats the convolutions of its development. The line forming a spiral is the hierarchy of the judicial system. At the same time this line, as the spiral of lower order, represents the unification and differentiation of judges’ specialization in consideration and resolution of cases, in jurisdiction and official knowledge of controversies, as well as the centralization and decentralization of judicial control, and as a consequence, the redistribution of powers between the judicial instances (appeal, cassation, supervision). Reduction or increase in number of judicial instances occurs simultaneously with the change of the administrative-territorial division of the state, and principles of government, the population size, and hence the number of cases coming to court. Depending on what authority (judicial or non-judicial) heads the judicial system and carries out check of the court decisions, there is the correction of its principles and procedures. The domestic judicial system, having passed some cycles, recently passed the bifurcation point and again is in an unstable state. Evidence of this is the merger of higher judiciary in the system of arbitration courts and courts of general jurisdiction, despite the fact that this task was not included in the Federal target program for development of the judicial system until 2020. Complex study of factors influencing the judicial system will allow us to comprehend the global processes in society and the state – as being fundamentals in forming the structure of the judicial system and principles of its functioning. Such researches are useful for fledged understanding the history of the development of the domestic judicial system and its trends. Therefore, taking into account the history of transformations and their scales, the book gives a new understanding of the modern state of judicial system and possibility of its modeling – with due regard for the mistakes of the past.
This article focuses on the American experience of guaranteeing decisional independence of judges. Historically the United States turned to be the pioneer in the area of legislative regulation of the status of judiciary power. With forming the normative base of both functioning of judiciary and the status of judges the following factor (which was repeatedly emphasized by the Founding Fathers) was taken into consideration: actual separation of powers is impossible without independent judiciary, and thus institutional independence of judiciary is impossible without decisional independence of individual judges. The article includes some comments of American judges regarding the essence generating prestige and institutional independence of the American judiciary and the qualities necessary for a good judge. The article also describes the doctrine of judicial activism.
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/