Rule of Law Doctrine: the Status of Scientific Study in Ukraine (2010–2020)

Abstract

Once a new rule of law concept was enshrined in the Constitution of Ukraine in 1996, the Ukrainian scientific doctrine developed two key approaches to understanding it: via its content and correlation of rue and law concepts
(so-called integral approach) as well as via clustering rule of law elements, components and requirements (so called element-by-element approach). The 2016 Constitutional reform amended the paradigm of executing justice in line with the new wording of Article 129 of the Constitution of Ukraine: in executing justice a judge is governed by rule of law (the superseded wording read abiding by the law only). Hence a compelling need emerged to determine which of the approaches to understating rule of law is operant and applicable to implementing the said Constitutional reforms in practical terms. The purpose of the article is to incisively analyze the approaches of the Ukrainian law science towards understanding rule of law in order to determine an approach a judge should be governed by while executing justice in compliance with Article 129 of the Constitution of Ukraine. Research methodology combined an array of general scientific (analysis and synthesis, systemic and generalization approaches) and special (historical, comparative and logic) methods. Works of foreign and national scholars, reports and studies on rule of law prepared under the aegis of the Venice Commission as well as legal acts served as theoretical foundation of the study. The scientific novelty of the study is that the conducted analysis of the sources for understanding rule of law indicates significant build-up thereof over the last decade. Analysis of the new sources affords the conclusion that the soft law documents (2011 Report
On The Rule Of Law of the Venice Commission and the Rule of Law Checklist adopted in 2016) had a major influence upon the Ukrainian scientific doctrine and case-law. The 2011 Report is the culmination of the European consensus on understanding rule of law via its key elements, i.e. legality, legal certainty, prohibition of arbitrariness, access to justice, respect for human rights, non-discrimination and equality before the law. The fact that the Administrative Procedure Code (2005) and Criminal Procedure Code (2012) of Ukraine enshrine the obligation of the courts to take into account the European Court of Human Rights practices whilst applying the rule of law principle has been conducive for the general courts to conceptualize rule of law via its components (elements, requirements, aspects) reflected in European Court of Human Rights decisions. The 2011 Report and case-law allowed to validate compliance of the approaches to understanding rule of law in the current Ukrainian scientific doctrine with the conceptual approach agreed upon at the European level (in the European Council system) and arrive at a conclusion that the so-called integral approach is erroneous and futile. Analysis of scientific publication over the last several years is indicative of the fact that the Ukrainian scientific doctrine changed its vector and moves away from the so-called integral approach to understanding rule of law towards the element-by-element one, which will most likely become prevailing. Conclusions. In executing justice, the Ukrainian courts should be governed by understanding of rule of law, set forth in the 2011 Report. The choice of an approach towards understanding rule of law appears exhausted, whereas the focus of scientific studies should be shifted to that of analysing rule of law elements or specific requirements with the use of a checklist (so-called benchmarks, see the Rule of Law Checklist).

Keywords: rule of law; elements; requirements; Ukrainian doctrine; executing justice; Rule of Law Checklist.