THE CONCEPT OF BALANCE IN THEORETICAL LEGAL AND CRIMINAL PROCEDURAL DISCOURSE

Abstract

The article is devoted to clarifying doctrinal approaches that determine the content of the balance concept in legal theory and criminal procedural science. These approaches will form the methodological basis for the further formulation of the conceptual balance model in criminal proceedings. It is proposed to shift the focus from individual selective components to the overall system. The content of the study is structured into several blocks. The first part deals with the origins of the idea of balance in the historical-legal continuum. Of course, the limited scope of the article did not allow to outline fully the pluralism of the legal balance interpretations. However, the author's conclusions confirm that the idea of balance and proportionality was discussed only fragmentarily and under the influence of the dominant paradigm. The second part of the article shows the era of rapid growth of attention to the balancing process in American jurisprudence. In this context, the author appeals to the works of T. A. Aleinikoff and P. McFadden, which show not only the advantages of the balancing test in law, but also the disadvantages of this theory. The third part of the article demonstrates the positioning of the balance concept in the Ukrainian legal discourse. Here the emphasis is on the balancing of interests in the legal process, although the balancing is related to the functions of the dispositive method of regulation, and to the factors of differentiation of the criminal procedural form, and to the proportionality of discretion, etc. The final part presents the author's conceptual three-level balance model. The conclusions emphasize that balance in criminal proceedings is an integral attribute of a legal, democratic state. The state takes care of the qualitative balance at the institutional level. The criterion of this quality is that the same state, at the level of application of the law, is in the same "line of justice" in which an ordinary person is waiting for a fair decision.