“Judicial Lawmaking”: pro et contra

Abstract

Introduction. As a result of the application in scientific research of descriptive and objectiveteleological methods of studying legal phenomena, a number of foreign and Russian scientists often describe only truly objectively existing legal phenomena, including “judicial lawmaking”. Theoretical Basis. Methods. From the position of scientifically grounded concept of integrative legal understanding, according to which the system of law first of all synthesizes only the principles and norms of law contained in a single, multi-level and developing system of forms of national and international law, implemented in the state, the article concludes that it is possible to highlight two types of “judicial lawmaking” in the special literature: “moderate” and “radical” types of “judicial lawmaking”. Results. “Moderate judicial lawmaking” is allowed only outside the law, its results are not binding on other courts, as the “norm” created by the court is only applicable ex post, only to a particular dispute and is not binding on other courts. In the opinion of the author of the article, this result of “moderate judicial lawmaking” is theoretically more reasonable to be considered as a kind of wrong – as “court positions” obligatory only for participants of individual judicial process, developed in the process of consideration and resolution of individual dispute as a result of interpretation of principles and norms of law. Discussion and Conclusion. Researchers – supporters of the “radical” type of “judicial lawmaking” allow the development of “judicial precedents of law” “through the law, beyond and against the law” (contra legem). It seems to the author that this type of “judicial lawmaking” is based on the scientific discussion concept of integrative legal understanding, according to which the heterogeneous social phenomena – right and wrong – are synthesized in the unified system of law (for example, law and individual judicial acts, including those containing specific positions of the court). New concepts and their definitions have been introduced into scientific circulation. The author concludes that the “radical” kind of “judicial lawmaking” is theoretically debatable, and practically counterproductive.