Citation by judges of the scientific sources: domestic and foreign experience

Abstract

Problem setting. Problems being topical for the domestic jurisprudence
concerning the possibility and advisability of the scientific sources using in the form
of the immediate citation in the judicial decisions have been analyzed. Problems as to
the possibility and advisability of the scientific sources citation in the judicial
decisions and necessity of the spreading of such practice in the Ukrainian courts
activity by the domestic jurisprudents has not been specially investigated. To our
view they should be considered in the broader context of the science influence on the
law enforcement, to what extent results of the scientific research are in demand in
legal practice and possible ways of its improvement. Will this practice promote
increasing of the administration of justice quality, taking lawful and fair decisions,
increasing of the court authority? Working out of the corresponding problems in the
aspect of the domestic reality has been actualized in connection with the conducting
of the court reform being recognized as one of the most urgent in the proclaimed
program of the reform «Strategy 2020» by the President of Ukraine P. Poroshenko.
The conclusion as to the necessity of such practice spreading in the domestic courts
activity has been made.
Recent research and publications analysis. Works by H. Beverley-Smith, J.
Pradel, F. Shecaira, S. Shevchuk, M. Savchyn, M. Savenko, Y. Yevgrafova O.
Yevsieiev are noteworthy among modern scientists researching this problem.
Paper objective. The main aim of the article is determination of peculiarities
of the legal science achievements using (in the form of the direct citation) in the
activity of the domestic court instances and foreign courts.
Paper main body. Today in the countries of the continental legislation law
justly is considered as the most developed form of legal rules strengthening. As a
result of the precision of the presentation of legal norms it is the best technical mean
of their strengthening in the epoch when the complexity of the social relations
highlights precision and clearness of its formulation. Along with this the idea of the
absolute sovereignty of law in the Roman-Germanic legal family is fiction. Judges
has not relied exclusively on law and refer to principles of law, case law, legal
doctrine and they «search» law in other its manifestation (sources of law) and refer
directly to them in the court acts. Such changes in the understanding of law and its
use is connected with the revival in the twentieth century of the natural and legal
thought. Judges become more «open» while making their decisions trying to take into
account social and economic, political, cultural, religious aspects of the case being
the subject of the trial and go beyond congealed legal rules in searching more flexible
legal decisions that meet a complex and changing life circumstances. Such position is
quite common for lawyers of the Anglo-American law where law has never been
starting point in their professional legal activity, scientific researches and training of
legal personnel.
Conclusions of the research. On the base of the analysis of the court practice
in the countries of the continental and Anglo-American law it has been ascertained
that judges while administering justice, especially in so-called complex and the most
resonant cases quite often turn to the achievements of the legal science and use
citation of scientific works in their court decisions. By this it makes their legal
position more reasonable and convincing and as a whole increases the authority of the
judicial branch of power. It is especially true in domestic realities as the current state
of the Ukrainian society being marked by the quite low level of confidence in courts.
That is why, it is quite reasonable spreading of such a practice in the Ukrainian courts
activity.