Unification of the Supreme Court’s Case Law on Methods and Rules of Legal Interpretation

Abstract

The article addresses the unification of the case law of the Supreme Court concerning the methods and canons of legal interpretation as a means of ensuring the consistency of judicial practice in civil and commercial proceedings. The scholarly problem lies in the fact that the insufficient consistency of judicial practice has traditionally been regarded as a substantial deficiency of the domestic legal system, one manifestation of which is the unpredictability with which the courts form and modify their case law, while the question of the legal significance of the methodological statements of the Court of Cassation remains unresolved. The purpose of the article is to determine whether the Supreme Court is able to unify judicial practice in the use of methods and canons of legal interpretation and, if so, in what manner. Drawing on an analysis of the case law of the Supreme Court, the author demonstrates that the recourse of the Court of Cassation to interpretive methodology remains inconsistent and unpredictable, whereas the choice of a particular method of interpretation directly determines the outcome of the dispute and is capable of reversing it. The article examines how the methods and canons of interpretation relate to the notion of a conclusion on the application of legal rules within the meaning of Article 236(4) of the Commercial Procedure Code of Ukraine and Article 263(4) of the Civil Procedure Code of Ukraine. It is established that the division of a court’s statements into ratio decidendi and dictum, borrowed from the law of common law countries, has to a certain extent been adopted by the Supreme Court, yet it provides no unequivocal answer to the question raised, either in domestic or in American doctrine. The author argues that although the methodological statements of the court of cassation are ordinarily attributed to the reasoning underlying a legal position, an individual statement of this kind may simultaneously constitute a conclusion on the application of other legal rules, primarily those governing recourse to the sources of law, and therefore be binding on the courts. The article separately examines whether the proposed concept lends itself to practical application through the criterion of the similarity of legal relations, and shows that the evolution of the case law of the Supreme Court towards a flexible understanding of such similarity poses no obstacle to it. The article identifies the limits of the possible unification of judicial practice concerning the methods and canons of interpretation: those questions that lend themselves to precise specification are suitable for the formation of conclusions on the application of legal rules, the range of such questions being examined against the experience of the United States. The author further contends that the introduction of universal standards of interpretation is inappropriate in the light of foreign experience. It is concluded that the impossibility of specifying certain methodological considerations does not deprive them of legal significance, since they serve as advisory guidance for lower courts, and it is therefore important that the Supreme Court devote sufficient attention to setting out such considerations in writing when resolving complex questions of law.