Law

Law [право, закон; pravo, zakon]. The set of compulsory rules governing relations among individuals as well as institutions in a given society. Being part of the national culture, the law is influenced by the beliefs of a society and is inextricably involved in its social, political, and economic development. The term for law, pravo, is common to all Slavic languages. Originally, it meant ‘judgment’ or ‘trial.’ Other Ukrainian historical terms for law are pravda, zakon, ustav, obychai, poshlyna, pokon, urok, and staryna.

Before states were formed, communities on Ukrainian territory were governed by customary law. The history of Ukrainian law is divided into periods according to the distinctive states that arose in Ukraine.

In the Princely era (9th–14th centuries) the main sources of law were customary law, agreements such as international treaties, compacts among princes, contracts between princes and the people, princely decrees, viche decisions, and Byzantine law. The most original legal monument of the period is Ruskaia Pravda, which includes the principal norms of substantive and procedural law. The distinctions between public and private law and between civil law and criminal law were unknown. The medieval Kyivan Rus’ state declined, but its law continued to function. In the 14th to 15th centuries it was known as Rus’ law in Ukrainian territories under Polish rule. Gradually, it was replaced by public as well as private Polish law. At the same time (14th–17th centuries) Lithuanian-Ruthenian law developed in Ukrainian territories within the Grand Duchy of Lithuania (see Lithuanian-Ruthenian state). The laws compiled in the Lithuanian Register and the Lithuanian Statute remained in force within the Polish-Lithuanian Commonwealth and, to some extent, in the Hetman state.

Under Polish and Lithuanian rule different foreign laws were adopted in Ukrainian regions for restricted local use. Among villages governed by Rus’ law were scattered communities founded on Wallachian law or Germanic law. Armenian and Jewish colonies enjoyed internal autonomy and governed themselves by their own law. Municipal self-government based on Magdeburg law dates back to the 13th century and survived as late as the 19th century in Ukraine.

The law of the Cossack period was based on the Hetman's treaties and legislative acts, the Lithuanian Statute, compilations of customary law and Germanic law, and court decisions. After many years of work, the law was compiled and systematized in the Code of Laws of 1743. The autonomous Hetman state had its own law, based mostly on the Lithuanian Statute. With the abolition of Ukrainian autonomy at the end of the 18th century, Russian law, first public law and then civil law, was introduced in Russian-ruled territories. In Western Ukraine, Austrian law was introduced in 1772–5. In 1919–39 some of the territory was governed by Polish law and some by Romanian law, while Transcarpathia came under Hungarian and Czechoslovak law. These regimes in Western Ukraine tolerated Ukrainian customary law as a supplementary source of legal norms.

Except for state and political laws, the laws of the former regimes remained in force during the brief period of Ukraine’s struggle for independence (1917–20). Ukrainian legislators and jurists did not have time to construct an independent system of law.

A new kind of law, known as ‘socialist,’ ‘revolutionary,’ and ‘Soviet,’ arose in the Ukrainian SSR and the USSR. The Soviet regime abolished the previous laws and legal institutions and introduced its own legal order, which was codified, eventually, as Soviet law. Soviet norms were determined not only by the constitution and the laws or decrees of the government, but also by the Communist Party program, the decisions of the leading organs of the Communist Party of the Soviet Union, and the current Party line. Thus, law was an instrument of politics. The Soviet state was not a law-governed but a police state, in which law played only a subservient role. It lacked constitutional guarantees of individual rights and firm principles of legality that were binding on the authorities. The state were the source of law, but stood beyond the law.

In codifying Soviet law in the 1920s the regime attempted to overcome the revolutionary chaos that arose out of the disintegration of the old legal order and the political experimentation with the idea of the ‘withering away of the state.’ The introduction of the New Economic Policy also called for a clearly defined system of laws. The new codes remained European to a large degree, in their classification scheme, their institutions and principles of procedural law, and their terminology. The idea of a distinctive Soviet economic law based on Marxism was rejected in favor of a legal system similar to that in bourgeois societies. A uniform system of laws for the whole Union of Soviet Socialist Republics and separate republican codes slightly different from each other were drawn up. The same principle was followed in the 1950s and 1960s, when new codes were worked out. The accumulation of legislation since the 1920s and the demand for a more liberal system of ‘socialist legality’ prompted the government to undertake the task of codification.

Soviet legal theory did not recognize the traditional distinction between public law and private law. Soviet law was based on the social ownership of the means of production and a centrally planned economy. By regulating production and consumption the state controlled the essentially private sphere of people's lives. Hence, even family, marital, and inheritance relations were not exclusively private. Yet the general division of law into branches accepted in the West was preserved. State law was divided into branches such as administrative law (see Administrative Code of the Ukrainian SSR), financial law (consisting of budgetary law, tax law, credit law, insurance law, and audit law), electoral law, language legislation, and education law. Some authors also distinguished within state law, constitutional law, which defined the process of legislation. Branches that regulated economic relations—water management law, maritime law, and air transport law—fell clearly under public law. Economic law included also forest legislation (see Forest Code of the Ukrainian SSR), land law, and collective-farm law. Relations between manual or office workers and the employer (the state or enterprise) were regulated by labor law, which was public, not private, in nature. The basic part of private law in the USSR was civil law (see Civil Code of the Ukrainian SSR). The main branches of civil law were property law, family law, inheritance law, housing legislation, and law of contract. Copyright law and patent law were special sections of the last branch. The process of civil litigation was governed by the law of civil procedure (see Civil Procedure Code of the Ukrainian SSR).

The latest codification of criminal law in the Ukrainian SSR took place in 1960 (see Criminal Code of the Ukrainian SSR). The code dealt with offenses against the social order and individuals who were punishable by the state. The severest sanctions were applied to political crime. Another branch of criminal law was criminal military law. The judicial process in criminal cases was governed by the law of criminal procedure (see Criminal Procedure Code of the Ukrainian SSR). The norms defining the institutions and operation of the penitentiary system were contained in the Corrective-Labor Code (1971).

Besides norms that regulate legal relations and define the legal order within a state, there are norms that regulate relations between sovereign states or between states and international organizations. International law is based on treaties, legal customs, legal principles, and court decisions. The Soviet theory of international law accepted the principle of exclusive sovereignty and refused to recognize the precedence of international legal norms over national laws. Because Ukraine has enjoyed independence for only brief periods, its contribution to the development of international law has been slight, and the international legal status of Ukraine was somewhat problematic.

Canon law, which governs the internal life of the Catholic and Orthodox churches, today lies outside the secular legal system run by the state.

Problems of legal theory and the history of Ukrainian law have been researched by Ukrainian scholars (see Legal scholarship). Legal education is provided in Ukrainian institutions of higher learning (see Law studies). To maintain high professional standards Ukrainian jurists and lawyers have established their own legal press and have organized professional associations, such as the Society of Ukrainian Lawyers in Lviv, the Ukrainian Law Society (Kyiv), the Ukrainian Law Society in Prague, and the Association of Ukrainian Lawyers in the United States and Canada.

Yurii Starosolsky

[This part of the article originally appeared in the Encyclopedia of Ukraine, vol. 3 (1993).]

Sources of law in independent Ukraine.

The sources of law are the origins of law, the official rules recognized by the state as having legal binding significance. Ukraine is a country of continental legal system, so the main source of law is the legislation of Ukraine published in the form of various acts and codes. The judicial practice has a subsidiary (auxiliary) role in regulating public relations.

According to the legal force (the ability of legislative acts to generate legal consequences that lead to the emergence, change, or termination of legal relations) there are the following sources of law in independent Ukraine: the Constitution of Ukraine; international acts (treaties) recognized as binding by the Supreme Council of Ukraine; laws regulating specific issues of social life; bylaws; and the jurisprudence of the Supreme Court of Ukraine.

The current Constitution of Ukraine as a source of law was adopted on 28 June 1996. It has the highest legal force and occupies the supreme position in the hierarchical system of laws. All laws and bylaws must not contradict the provisions of the constitution.

According to Article 9 of the Constitution of Ukraine, current international treaties, approved by the Supreme Council of Ukraine, are part of the national legislation of Ukraine. International acts as sources of Ukrainian law contain generally recognized norms and principles of international law contained in international documents in the field of protection of human rights. These legal acts are divided into international documents for the protection of human rights (such as the Universal Declaration of Human Rights of 1948; the International Covenant on Civil and Political Rights of 1966; the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, etc.) and international treaties on legal assistance between states (for example, the European Convention on Mutual Assistance in Criminal Matters of 1959; the Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases of 1993, etc.).

Laws regulate various spheres of public and private relations (for example, ‘Law on the Office of the Prosecutor,’ ‘Law on Consumer Protection,’ ‘Law on Mortgages’, etc.). Codes are recognized in the Ukrainian system of legislation and have the same legal force as laws. However, they only regulate a certain area of legal relations, combining the rules of a particular branch (sub-branch) of law. For example, the Code of Labor Laws regulates labor relations of employees; the Code of Ukraine on Administrative Offenses deals with liability for administrative offenses; the Civil Code of Ukraine regulates personal non-property and property relations (civil relations), etc.

Bylaws establish and specify the primary norms enshrined in law. Bylaws include, for example, acts of the President of Ukraine, the Cabinet of Ministers of Ukraine, various ministries, the Office of the Prosecutor General of Ukraine, and other state bodies, which are based on law provisions and designed for their implementation.

Specific forms of jurisprudence, such as, for example, legal positions of the Constitutional Court of Ukraine, also represent sources of law in Ukraine. The Constitutional Court of Ukraine has the power to review judicial compliance with laws and other normative legal acts of the Constitution of Ukraine, as well as to officially interpret the provisions of the Constitution of Ukraine.

The case law of the European Court of Human Rights is binding in Ukraine, as per Article 55 of the Constitution of Ukraine and paragraph 1 of the Law of Ukraine ‘On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950’.

The Supreme Court of Ukraine formulates the final legal position in any particular case, which can later be followed by other courts in similar cases. For a long time, resolutions of the Plenum of the Supreme Court of Ukraine have been used as tools for regulating social relations and ensuring the proper application of the law. These judicial acts provide generalized guidelines of judicial law enforcement, since they systematize various legal positions of lower courts according to specific criteria.

BIBLIOGRAPHY
Konstytutsiia Ukraïny [28 June 1996]: https://zakon.rada.gov.ua/laws/show/254к/96-врText

Kateryna Shunevych

[This part of the article was written in 2022.]