Об эволютивном толковании в российском праве

Abstract

Introduction: the paper discusses the analysis of evolutive interpretation as a special phenomenon in the theory of legal interpretation. There is no this phenomenon among the traditional ways and types of interpretation in domestic law. First, this concept originated in the depths of the sociological legal understanding, which requires the judge to make decisions that meet legal justice and public expectations. Secondly, from these positions, any product that the court “produces” within the framework of the sociological approach to law is judicial law-making. The question of its terminological designation is related to the peculiarities of the implementation of approaches to legal understanding in the practical activities of the court. Third, the term “evolutive” interpretation, which has developed in the activities of the supranational judicial institutions of the integration associations, has historically proved to be euphonious, convenient and suitable for practical use. The purpose of the research is to formulate the methodological foundations of the application and the characteristic features of the evolutive interpretation. The objectives of the research are to reveal the features of the historical genesis, the essential features of evolutive interpretation from the point of view of judicial and scientific doctrine, to show that this ambiguous concept is still the subject of scientific discussion. Methods: the paper uses the philosophical and general scientific principles; the system, genetic and activity approaches; the formal-legal, system and cultural-historical methods. Results: when discussing the possibility of extrapolating the foreign term “evolutive” interpretation into the domestic legal system, it is necessary to observe the continuity of the development of the domestic legal science and the national legal traditions. It is necessary to proceed from the achieved national experience of technical and legal support and terminologization of law-making and law-enforcement processes.