Legal adaptation as a mode of interaction of juridical systems
Journal Title: Правова держава. Щорічник наукових праць (Pravova derzhava) - Year 2016, Vol 27, Issue
Abstract
The article investigates theoretically and practically important issue on determining the basis and the nature of legal adaptation as one of the types of correlations of legal systems. In turn it is establishes approaches to understanding the category of “legal adaptation” and what has to be adopted or adapted. The range of research on processes of adaptation is proposed to be extended, that is not reduced to coordination only “the legislation of Ukraine to the EU legislation”, because law, as part of the legal system, by its substance is a broad, complex and comprehensive process that involves adapting of the national concept of law to the concept of the European law. The article also states that the essence of adaptation of the legal system of Ukraine to the EU legal system is primarily in the perception by Ukraine the European concept of law in general and the concept of private law in particular, considering that the last one by its nature and ideol- ogy is purely an European concept. However, this is not about adapting the national concept of civil law and provisions of Ukrainian civil legislation to the outlines of the European law. To facilitate determining the principles of legal adaptation, the provisions of the Draft Common Frame of Reference (DCFR) must be followed, that will allow to solve a number of methodological issues. The totality of types of interaction of legal systems and their hierarchy is also reviewed. It is proposed to term the phenomenon of interaction of legal systems in general as a “legal acculturation” and in turn to distinguish between “legal acculturation” “vertical” and “horizontal”. As the reception is the perception by the following legal systems the elements of the past systems, the “horizontal” reception is impossible by definition, but a more appropri- ate is to understand the acculturation as a complex process of mutual influence and the result of that influence of cultures on one another, or adoption of the phenomenon from one envi- ronment and introducing it to a different environment.
Authors and Affiliations
Yevhen Kharytonov, Olena Kharytonova
Keywords
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