Процеси застосування права як автономний об’єкт вивчення сучасної юриспруденції

The degree of interest in studying the processes of law application and their results in the form of decisions depends on the cultural perspective within which the processes are perceived. The processes of law application, as a separate area of research, is a natural research area of legal culture based on the distinction between lawmaking and law application as two separate processes. The spheres differ in terms of powers, organization and procedures and, partly, in terms of decision-makers.

Attention is drawn to the fact that research issues of legal interpretation, legal argumentation and technique (which are an integral part of the application of law as a separate subject of study in both general and specific legal studies in continental legal culture) are simply part of mainstream jurisprudence in Anglo-Saxon culture, where lawmaking and application of law are not distinguished. In jurisprudence based on the principles of the Anglo-Saxon legal culture, the issue of application of law is dispersed: it is not covered by a single term or concept and is combined with the study of court decisions and the functioning of the justice system.

The analysis of the literature gives grounds to distinguish the following: signs, functions, principles and stages of law enforcement activity; the author also emphasizes that the fundamental principle of application is the rule of law itself, and notes the peculiarities of the entire process of law application by executive authorities, and reveals the ways to improve the practice of law application by the relevant authorities. Considerable attention is paid to the study of both the administrative and socio-legal nature of the application of law.

The author updates and substantiates the established views and highlights the current problematic issues of law application. It is proposed to consider law enforcement as a certain way of organizing the implementation of the rules of law themselves. The author highlights the peculiarities of law enforcement as a peculiar phenomenon of legal reality and analyzes the most controversial issues. 

The specifics of both procedural and procedural regulation and law application, in particular, the application of law in courts, are clarified and combined with studies related to various “techniques” of legal argumentation. It should be emphasized here that the tendency to narrow the study of the application of law to the interpretation of law and legal reasoning/argumentation leads to the fact that the logical and linguistic method is the main research method (the so-called dogmatic method of legal research as a specific method for legal sciences).

Also, in general legal science (including legal theory), the main area of study of the processes of applying law is the issue of legal interpretation and legal reasoning.