Legal certainty and particularism: national and foreign experience
Journal Title: Альманах права - Year 2018, Vol 9, Issue 9
Abstract
The article is devoted to the question of legal certainty principle in the context of particularism. Particularism is a sociologic, philosophical, juridical notion, which means a process of secession, separation and detachment of particular interest. In jurisprudence it can be seen as a parting of the interests of some groups, as a tendency of autonomy, even as separatism. In the article it is regarded in its general meaning, which in the context of legal certainty appears to be controversial to universality and generality. The principle of legal certainty is not named in the Constitution of Ukraine but despite this fact it is widely used in courts decisions in Ukraine and in European Court of Human Rights. So it is embodied in the law system. There are different points of view weather this principal is in function only in the law –making procedure or it spreads its influence on the process of application of legal norms. The systematic and full scientific research in this field is absent in Ukrainian law doctrine. The author of the article comes to the conclusion that it is a general principle that influences the process of making law, its use and interpret. Legal certainty doesn’t only mean the clear and accurate legal technic, among its demands there also are: predictability of law, respect to the legitimate expectations, strict procedure demands of thru law-making process, obligatoryness of court decisions and others. So the meaning of legal certainty principle is shown in the number of abovementioned elements. Such situation forms the tendency in juridical research to regard particular element of legal certainty separately from the others. From one hand it has a positive effect – the element of legal certainty is precisely analyzed, all or the majority of the ways of using it are shown. But usually the link between this element and the other in connection with legal certainty as a general law principle is absent. It leads to the problem of a wide view on this principle. So on the other hand legal certainty pretend to loose its general meaning and wide influence on the law system of Ukraine. It is stated that particularism in connection with legal certainty could lead to the narrowing of its value. While making research of one or some elements of legal certainty it is highly important to emphasize on its link with the other elements and to avoid trenching upon its integrity.
Authors and Affiliations
Hanna Ogneviuk
Keywords
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