Extra-Legal Values in Judicial Interpretation of Law: A Model Reasoning and Few Examples

Abstract

The aim of the paper is to analyze the types of interpretative reasoning determining the content of extra-legal criteria contained in general reference clauses. This construction, despite its normative foundation, detaches itself from the intention of the legislator much more than e.g. the principles of law, at the same time extending deliberately judicial discretion. Extra-legal values, identified by courts as to their type and their content, then confronted with internal legal axiology and concretized with respect to the facts of the case, are the most crucial part of reasoning that affects the process, results and roles of particular rules of judicial interpretation. It reduces the role of language and systemic rules, connecting the effect of determining the content of extra-legal values primarily with the type of political system and the related scope of judicial autonomy. The different impact between democratic and authoritarian regimes on judicial reasoning is confirmed by the analyzed examples of the case law of the European Court of Human Rights and the Polish courts deciding in the period before and after 1989.