A CRITICAL LOOK AT THE POLICY OF LAW IN THE CONTEXT OF THE REFORM OF THE CIVIL CODE OF UKRAINE (SOME METHODOLOGICAL REMARKS)

The questions regarding the current status of Civil Law and its development prospects are being determined by the legal systemsconvergence processes. Under these conditions, the convergence of the legal methodological approaches accepted among the relevantlegal communities is an essential issue.The author notes the modern civil law lost the historical grounds that had been a base for European Continental law, as a consequence,the focus is shifting exclusively to the legal policy factor of civil law development. At the same time, the author remarks thatthe current experience of a convergence being developed in the nuclei of legal orders united by the Western law tradition common forthe Continental and Anglo-American law should be taken into account for the civil law reformation in Ukraine. According to the author,the difficulties of legal reforms in Ukraine are predetermined by the commitment to find in the bowels of Continental law the civilizationalgrounds for building national legal systems, whose relevance is being disputed in the context of the civil law systemic crisis inEurope. The author also remarks that the Ukrainian legal community does not have a clear vision of private law policy.

metaphysical idea, but only "its instrumental essence" 8 : the law has long and unconditionally been perceived as "a regulator" alienated from the right holder.
There was also not much left from Christian theology in modern civil law. This is observed in a slight residual sacralization of the civil code text itself (similar to Scriptura Sacra), whose authority has long been "adjusted" by the constitutionalism doctrine, as well as in the doctrine of the sanctity of the contract (pacta sun servanda) in the form when it is not limited by the principle of effective violation of the contract borrowed from American law.
It should be noted that, in contrast to Continental law, Anglo-American law (often referred to as Common Law) is characterized by a strong judiciary, and as a consequence, by the precedent nature of law. It is also distinguished by indirect borrowing of the Roman law material (through the doctrine, first thanks to the activities of the Oxford and Cambridge universities, where Roman law was stated as a written reason, while common law was mastered in bar associations replenishing ranks of magistrates), as well as by the focus on the practical implementation of law with a characteristic priority of procedural law over the substantive one.
The Сommon law method is close to Roman law in which intuition based on the principle of justice, despite logical and systematic criteria, is still of great importance in judges' decisions 9 . In turn, Continental law, due to welldefined historical conditions of its formation, has learned the experience that the ratio decidenti of magistrates is determined by a normative statement enshrined in a codified act. The methodological approach formed in Continental law at some historical period seemed to be so attractive and natural that the founders of the historical school of law (XIX century) considered it as a "universal regularity of genesis of law".
So, in the second half of the 19th century, J. Phillimore argued that "the natural progress of law goes through three periods: the "infant period" (the rule of custom), the period of the complication of law (the rule of case law) and the period of the pinnacle of evolution (codification of law)" 10 . The fact that "Continental law, in the presence of legal norms in the form of codes accessible to all, is characterized by predictability and stability of legal consequences which are not dependent on judicial discretion" 11 is also a positive feature.
Thus, researchers of legal phenomena recognize that the meaning of a norm on the continent, by virtue of its clear verbal wording, is considered constant, independent of the subject of interpretation, and this allows to "apply" uniformly the norm in resolving many "single-row" legal cases; however, in case law, there seems to be no such degree of formal certainty and constancy of the meaning of the legal "norm" 12 .
In any case, the "popularity" of Continental law (according to some statistics, 2/3 of the world's population applies Continental European law 13 ) can hardly be explained solely by the factors mentioned above. Most likely, once prevailing military, technological, and cultural-legal Eurocentrism had a significant influence on the spread of this model of legal life organization.

III. The origins of civil law policy
The methodological error in understanding the peculiarities of Continental law, in our opinion, is a misconception about the main component of law -its norm. Obviously, there is a need for a consequent deconstruction of the "norm of law" concept. In other words, we are talking about emphasizing of certain aspects in the general legal category "norm of law", namely: "normative statement" considered as the central element of the legal system, "normative rules" serving as a leading model for assessing the behaviour of a participant in legal communication in law activities, "rule of conduct" as the basis for the obligation of legal communication subjects.
The necessity of the proposed differentiation of the concepts is predetermined by the specificity of the reference to the acting subject of legal reality, and, accordingly, the function that these terms (normative statement, normative rules and rule of conduct) perform in the process of legal communication. The gap between the normative rule as an abstract directive prescription and the particular rule of behavior that guides the subject is filled in case of a dispute with the value obtained in the practice of the normative rule applying 14 .
The notion that the normative statement is a norm of law is specific for Continental law jurisprudence due to certain legal grounds: legal dogma in Europe was formed in isolation from practice, within universities. There, by virtue of giving the civil law text sacred power, an initial point of view is formed that the rule, generalized and enshrined in the text, serves as a regulating principle for practice. However, this point of view is unfounded. Normative statements, fixed most often in the normative legal act, including the civil code, are adopted in accordance with certain procedural rules applicable in the law-making process. In this sense, the development and adoption of normative statements relate to the field of public (state) law. The subjects of can only believe in the good faith, ho nesty, and reasonableness of the legislator, who oversees the development and adoption of the respective normative act.
We recall that until the triumph of the constitutionalism doctrine, in order to avoid government interference in the affairs and interests of private individuals, the Civil code in the countries of Continental law had the status of an economic constitution, acting in the individuals' property sphere, while the political constitution covered exclusively public law aspects of the life of society as a whole. However, current Civil codes are based on the constitution and must comply with it. So, the 1 st paragraph of article 4 of the Civil Code of Ukraine expressly provides: "The Constitution of Ukraine shall constitute the framework of the civil legislation of Ukraine" 15 .
The doctrine of the "horizontal effect" of constitutional norms, assuming that constitutional principles (derived from the normative material of the constitution itself) serve as a "normative umbrella disclosed above all legislation," suggests that each civil law norm must be compatible with the system of constitutional values and must be interpreted in keeping with the spirit of this system 16 . Thus, the stability of the legal regime, prevailing in the sphere of private law, depends on the stability of the sphere of public law that is very mobile in modern conditions. Nonetheless, it seems near-sighted not to take into account the trend that arises in this regard, especially when it comes to the modernization of the civil legislation of Ukraine which proclaimed "the irreversibility of the European and Euro-Atlantic course of Ukraine" 17 in the preamble of the Constitution. In any case, no matter how strong is the desire to endow the normative statement of the civil law codifications with sacred meaning, one should not expect a miracle since the normative statement enshrined in the text does not coincide with the normative rule and rule of conduct. Indeed, the value of law in its only true meaning of constant and unchanging will (perpetuum voluntas) is determined not by beautiful phrases often resembling slogans on banners of the past, but by the authority of the judiciary based on reason and power of legal order. The above factors that do make some of the jurisdiction attractive in terms of protection of the rights to legitimately appropriated resource, as well as assets invested in the future. In this sense, the definition that "law is a general command, a decision of persons secured by the judiciary ˂…˃, reflecting the general consent of res publica" 18 , is still true.
Is not worth, in our opinion, to overestimate the effectiveness of the indirect influence on national Civil law of the unified acts of Soft Law, in particular, the Principles of European Treaty Law (PECL), the Principles of International Commercial Contracts (UNIDROIT), as well as the UN Convention on Contracts for the International Sale of Goods, certain provisions of which were borrowed by national codifications. Aimed to actions in international commercial circulation, the provisions of these and other "international acts" create additional unnecessary difficulties for participants in legal communication at the national level. Moreover, these acts were intended to harmonize the sphere of contractual obligation relations, while the harmonization of provisions on property and inheritance law remained outside the idea of establishing a homogeneous legal regime on the European continent.
We will be able to evaluate the effectiveness of the Model Rules of Private European Law (DCFR) "encroaching" on the systematization and unification of a significant part of the legal material traditionally related to civil law on the continent (general provisions, legal acts, law of obligations, as well as trusts, the legal idea of which was successfully borrowed from Common Law jurisdiction), only if they are actually translated into legal life. In our opinion, judging the effectiveness of the borrowed legal structure at the level of the legal act text is no more effective than the intention of the observer in the Plato's cave deprived of a full look to judge the reality by the shadows appearing on the walls of the cave.

IV. Some rhetorical questions instead of a conclusion
Thus, the assertion that the codification of civil law in Ukraine is a "multi-level system, the macro components of which are at the top level (the idea of natural private law, the ratio of natural law to the law, the rule of law in private law, the system and principles of private law, the structure of positive (written) private law and the Civil Code of Ukraine, the universalism of natural and written private law, in particular, the adaptation of private law of Ukraine to the cor responding European Union law, etc.), and the theories of individual institutions, their parts and provisions are at the lower levels " 19 is true, but only at the level of the fixation the elements of this system in the corresponding normative statements (normative sentences). They are expressing a judgment about whether a situation is desirable or undesirable.
Whether the ideas embodied in the Civil code is implementing in practice, when assessing the individuals' behavior from the position of regulatory rules and, especially, from the position of rules of conduct that guide specific participants in legal communication, still remains a question. The definition of the vector of civil law development depends on the answer to the above question. Whether private Continental law will remain the "ideal concept" 20 that legal life aspires to, or, on the contrary, legal reality following centrifugal tendencies caused by the "magical attractiveness" of other reference jurisdictions, will increasingly move away from the once perceived rational ideal of Civil law?