FULL FINDING OF LAW IN THE EXPERTISE TECHNIQUE

Abstract

The article deals with the issue of historical and analytical significance of “full finding of law”, that is, for instance, historical free and bound finding of law on one hand, and, respectively, analytical constructive and reconstructive finding of law on the other hand (in terms of the expertise technique). The purpose of the article is to demonstrate the historical and analytical expansion of finding of law in terms of the formation of the expertise technique (processing a legal case). In order to achieve this goal, the author tackles the following three questions: what is finding of law on the whole and what is full finding of law in particular; what is meant by the traditional expertise technique in concreto; how can full finding of law function in the present-day expertise technique. The article claims that in a normal case, the application of law consists of the establishment of a norm, the establishment of a fact, and the establishment of a decision, which correspond to the (simple) question of law (quaestio juris), the question of fact (quaestio facti), and subsumption respectively. At the same time, the word “establishment” (встановлення, vstanovlennia) should be understood everywhere as a synonym to the words “clarification” (з’ясування, ziasuvannia) or “stating” (констатація, konstatatsiia). In an abnormal case, the question of law is supplemented by the solution of an additional problem. The latter is shown in the works of F. C. von Savigny, E. Ehrlich, as well as H.-J. Koch and H. Rüßmann. The latter relate, respectively, to the interpretation and further making of law (Auslegung, Fortbildung des Rechts), the idea of free finding of law (freie Rechtsfindung), as well as the establishment and fixing (Feststellung (= Ermittlung), Festsetzung) of law (to be more specific, the meaning of the words of law) by a judge. The article makes a statement that historically, full finding of law is generally viewed as a combination of interpretation and non-interpretation. It proposes to regard full finding of law as reconstructive and constructive finding of law, that is, as finding of law, which is oriented to either the establishment of a conditional norm of law or the fixing of a non-conditional norm per se. In addition, the article offers to differentiate between formal and informal (material) subsumption, that is, the cases where subsumption either excludes or includes at least the question of fact. A prima facie choice is made in favor of formal subsumption. It is shown in the article that the traditional expertise technique is a methodology used by students to draft an expert opinion on the application of basic and subsidiary norms of substantive law in the form of a transition primarily from the establishment of a norm to the establishment of a decision, occurring in the expertise style. The expertise style of processing a legal case is a form of a written legal analysis ranging from a hypothesis regarding a relevant norm to the stating of a relevant decision. This kind of hypothesis, along with definition, is an element of the expert finding of law. On the other hand, the present-day expertise technique is a methodology that is to deal not only with the establishment, but also with the fixing of legal norms, that is, to deal both with conditional norms given to a judge in advance and with norms created by a judge himself (norms per se). The article makes an overall conclusion that today, the expertise technique is the art of full finding of law or, in other words, reconstructive and constructive finding of law.