Article title Legal formants: A dynamic approach to comparative law
Name of magazine Scientific-practical professional journal «Comparative Law»
(Ukrainian language)
Issue 1-2/2013
Сторінки [155-184]
Annotation The author argues the idea that the only measure of the value of a science is not a practical use of it, but its ability to produce knowledge, regardless of whether this knowledge is used in some way in the future. The goal of comparative law is to obtain knowledge about the different rules and institutions that are compared. Substantiated that the subject of comparative law is all law, denied the idea of ​​incomparability, unsuitability comparative methodology for the cognition of any legal massive, because that idea has ideological or political subtext – search for common or different elements in laws. Emphasis is placed on the problems of knowledge of law that can be solved primarily by tools of comparative law. In particular, it concerns with an understanding of legal language and determining its genotype. Also, the author proves insufficiency of the systematic approach to understanding the national law: rules of different sources of law, as well as non-normative legal and non-legal elements that do not add up to a consistent hierarchical system, do not form a single norm of each issue, and is a set of interacting and conflicting “legal formants” (the term borrowed from phonetics). Therefore, consideration of the law of one country, implicitly aimed at its reduction to a consistent system based on theoretical interpretation, for heuristic potential yield comparative cognition, which denies interpretative engineering of "proper law", but instead offers interpretative reconstruction of real laws in their diversity and contradictions, not in theory statements, but reproduces the mechanisms of its functioning. Thus, comparative law is a promising alternative, on the one hand, to the theoretical knowledge, and on the other – the restriction of legal studies to one country. The author believes that the approach of legal formants allows much more precise measurement of the degree of similarity (and community) and differences in legal systems than the traditional systematical approach, and expands understanding of the phenomenon of law as such.
Keywords legal formants, legal language, legal system, imitation of law, the methodology of comparative law, comparative legal knowledge, the subject of comparative law.