Право/ 9.гражданское право

kand. of philos. sciences Tinyakova E.A.

канд. филос. наук Тинякова Е.А.

Sergiev-Possad Branch of NS HEE “ Moscow Institute of Entrepreunership and law”

Сергиево-Посадский Филиал НОУ ВПО «Московский Институт предпринимательства и права»

New demands to judicial qualification against the background of complicated social reality (a view from Russia)

The problem raised in the article is aimed at the proficiency of a contemporary jurist. Some readers may agree that the problem of transferring the content of judicial education to practical work is decided by a practical term of students before graduation. But I don’t agree here and would like to propose a new course (optional or obligatory) for contemporary judicial education in Russia (the author backgrounds her considerations on fragments of judicial education in Russia, but the considerations may be useful for foreign systems of judicial education, the more so as there are many (as the author has read in English speaking literature) publications on the topic [1] that will be developed in the article.

The question on the agenda of proficiency in judicial jobs is how to meet social communication and judicial one on the most favorable level for clients and the most just level on the part of jurists. In foreign literature the problem is called “mediation” [2; Book 3. P.p. 28-30]. The goal of mediation is to find a resolution which all parties believe is fair and just, how to keep loyalty to the law by a jurist and not to manipulate the non-judicial language subjectively. Though a proficient guidance of a case on the part of a lawyer demands his wise choice of laws to combine, sometimes a lawyer may propose some favorable and helping actions to his clients to precede the application of laws (it happens in cases of divorce, restitution or other cases connected with property, compensations etc.). Good knowledge of laws does not demand to discount automatically possible solutions before proceeding have started. A good lawyer must act as a neutral party from the point of view of law contents (nothing to add and nothing to substract). It is realized in impartiality and unbiased conduct. An attorney, of course, advocates his clients’ interests. The three questions determine his practice:

1. What does the client deserve?

2. What are the opposite party’s interests?

3. How does an attorney achieve a fair resolution?

Even if an attorney is closely disposed to his client he still can’t trespass the laws. His main aim is to turn the law to his client’s favour (by means of just and fair language communication; an attorney is to search for objective linguistic possibilities in common language to raise it to the level of rigid judicial communication). In all the above difficult for a lawyer situations the competence in language communication plays the decisive role. Even if a lawyer has kept a good knowledge of basic laws after graduation from a university or institute his language competence may fail his proficiency. To make up for this gap in educating jurists the author proposes a new course “Linguistic competence of a jurist” (How to acquire a language competence of a jurist alongside with good knowledge of laws). Judicial knowledge is very rigid. We know that to change an existing law is sometimes difficult, even next to impossible. It is not a drawback of social content, but if laws become too flexible in existence we will lose jurisprudence.

What are the main goals of the proposed course:

• to combine a lawyer’s open mind for a client and at the same time to be confidential:

• how to overcome assumptions on both parts−a lawyer and a client;

• how to make communication with a client morally receptive, excluding hurts to clients;

• how to work with language on exact level of meaning;

• how to be understandable for clients an how to help a client to be understandable;

• how not to mislead the court.

All these problems exist in non-judicial communication, in wide social sphere. Practically every word of a language is unlimited in meaning for interpretation. Free interpretation without boundaries is called “manipulation”; in the other course “Business relations” it is considered a negative way of communicating. The course training jurists in Russian judicial communication in exact application of language meaning and following the moral norms and principles is “Professional ethics of a lawyer”[3]. But this is professional preparation on the level of meaning and the author argues for a new course “Linguistic competence of jurists” (which is to give a future specialist a language technique). Use of language may contradict moral norms and cause difficulties in coating meaning in words not only in social reality but also in judicial sphere. Among foreign judicial professionals there are lawyer-linguists (for example in different structures of the European Union because here translation exactness sets a problem: EU follows the policy of respecting each language of the member-states with three official languages−English, French and German) [4].

In Russian judicial education there are such courses: “Rhetoric”, “The Russian language and speech culture” but in this article the connection, interrelation and influence on one another of literary common language communication and judicial professional language are emphasized. A jurist keeps his professional knowledge on the specific judicial level of communication (it is good to communicate among lawyers) but when a lawyer communicates with clients it won’t do, here he must be linguistically competent to transfer communication from judicial level to socially common otherwise he won’t be understood and be able to polish fragments of vague common communication to the law compatible level. This stage of professional judicial development is often gained already after graduation. It is proves by the fact that to get a job in judicial sphere a graduate must have a two-year term of professional work otherwise he can count only on a job of paralegal. Thus practical preparation of a jurist takes place after graduation. I propose by including the course “Linguistic competence of a jurist” into the higher education curricula of Russian judicial education to give young specialists a chance to get a good job immediately after graduation. It will make the content of judicial education flexible enough to match complicated social reality.

Literature (bibliography)

1. John William Salmond Essays in Jurisprudence and Legal history.-Москва: ОНИКС, 2011.

2. Virginia Evans, Jenny Dooley, David J. Smith LAW, Career paths.-Prosvescheniye Publishers, “Express Publishing”, 2011.

3. Маслеев А.Г. Профессиональная этика юриста.- Москва: Юрайт, 2014.-318 стр.

4. Karen McAuliffe Language and Law in the European Union: the Multilingual Jurisprudence of Ecj. The Oxford handbook of Language and Law. 2012. Edit. by Laurence M. Solan and Peter M. Tiersma.