THE PLACE OF JUDICIAL RULE-MAKING IN THE MECHANISM OF LEGAL REGULATION

Abstract

The article substantiates the relevance of the study, which is caused by dynamic changes in the national legal system and the need to rethink the role of the judiciary. The author notes that in the context of globalization and Ukraine’s integration into the European legal space, the traditional understanding of the court as an exclusively law enforcement body is becoming insufficient. It is emphasised that ignoring the real impact of court decisions on the legal field creates a gap between legal doctrine and legal practice. The dialectical nature of the formation of the judiciary is considered, where each stage of development appears as a new turn of the spiral, improving the forms and procedural limits of the courts’ participation in the formation of legal standards. The essence of judicial rule-making as a «by-product» of the theory of separation of powers is analysed. It is argued that the power of higher courts to refer to general principles of law when identifying gaps in legislation gives rise to the phenomenon of «judge-made law». It is emphasised that such activity does not contradict the principle of separation of powers, but rather is a necessary element of the system of checks and balances that ensures the stability of the legal system in the event of regulatory conflicts. Attention is focused on a functional analysis of the activities of the higher judicial bodies of Ukraine. The role of the Supreme Court in ensuring the unity of law enforcement through legal conclusions and the Constitutional Court as a ‘negative legislator’ is considered in detail. It is determined that modern judicial activity is complex in nature, combining interpretative, quasi-precedential and law-making aspects, which allows courts to effectively «build» the law in accordance with the demands of modern society. Proposals for improving the legal regulation mechanism have been formulated. The author emphasises the need for official legitimisation of judicial rule-making by expanding the powers of the Supreme Court, in particular by granting it the right of legislative initiative. It is concluded that the transition from conservative positivism to the recognition of judicial precedent within the law is an innovative step towards building a state governed by the rule of law, where the priority is the effective protection of human rights and the adaptability of law to the challenges of the times