СПРАВЕДЛИВІСТЬ У ПРАВІ

НА ПЕРЕТИНІ ПРАВОТВОРЧОСТІ І ПРАВОЗАСТОСУВАННЯ

Abstract

Kryzhanovsky A., Gordyenko A.
The principle of justice: at the
itersection of law-making and lawenforcement
The article is devoted to an analysis
of the interaction between law-making
and the enforcement process in ensuring
the principle of justice. The author’s
research hypothesis is based on the fact
that the role and place of the principle of
justice as an organic regulator of public
relations is determined by the quality of
its legislative enforcement as well as the
degree of its implementation in practice.
The reasons for bringing the principle
of justice to the forefront of law-making
and law-enforcement activities in
modern times are explained. The problem
of the formulation of the principle of
justice in existing domestic legislation is
analysed, and the need for its normative
enshrinement and definition of the main
substantive characteristics is justified.
The incorporation of the principle of
justice in the value system of the law
and the importance of its legitimization
are analysed, which will ensure the
efficiency and effectiveness of the
normative regulation of public relations.It has been established that the
principle of justice forms part of the
principle of the supremacy of law,
which is recognized and applied in the
legal system of Ukraine, in particular
in laws that must be inspired by the
ideas of justice, freedom and formal
equality.
The article provides additional
arguments on the characterization
of justice as a real and effective
instrument in the field of realization
of law. An unjust rule of law does
not always and does not necessarily
entail an unjust enforcement result.
The courts may use justice in lieu ofthat a formal understanding of the
law prevails.
Two legal constructions are being
studied – the application of the
principle of justice instead of the law
(praeter legem) and against the law
(adversus legem). The content of justice
is revealed through the categories of
impersonality, impartiality and nondiscrimination.
The principle of justice
assumes particular importance in
the exercise of discretionary powers
and in addressing gaps in the law.
The authors conclude that the «deficit»
of fairness in law enforcement prompts
appropriate adjustments of legislation,
and its «lack» in law should be
compensated by law enforcement.