Interpretation of the Constitution and of Law-Transforming Principles within Activity of Courts and the Agency of Constitutional Control in the Republic of Kazakhstan

Abstract

Introduction The issues of law-making and law-transformation within the process of interpretation is regarded as one of the most problematic issues of juridical science and practice. According to classical theory of separation of powers, the court and other law enforcement authorities shall not make law, their role is reduced to usage of established or state ordered rules. Proponents of this theory substantiate impossibility and maleficence of judicial law-making by the fact that it houses possibilities for abuse of power and stray from principle of legality during delivering certain judgments. Secondly, according to opponents of judicial law-making, the law should appear definitive and clear, as without this the law is non-negotiable (4). Recognizing existence of positive aspects in this theory, it is worth to be noted that it is possible to speak about definitive and clear character of of law--including constitutional ones--only from the point of view of relativity and conditionality taking into account abstractness of legal regulations. In this regard, P.I. Kozubra correctly mentioned that if legal regulations were ideally accurate reflection of reality in all its complexity and specificity, they would not give any regulating effect. It is only approximate relevance of legal to objective reality (hence, partial non-conformity with it and certain independence of it) that makes it possible for them to be applied to very broad jural relations and fulfil their social functions (5). Therefore, the more the legal norm is, the more relations and real-life situations it comprises. At the same time, such situation generates need for interpretation of legal aimed at decreasing of their abstractness, at reducing them to form necessary for direct usage and realisation (6). A. A Need for Creation of Abstract Legal Norms In his days Hegel said following to the matter of judicial law-making within the process of legal interpretation, stressing that nothing changes the fact that the law itself does not settle these ultimate decisions required by actual life; it leaves them instead to the judge's discretion, merely limiting him by maximum and minimum. But these maximum and minimum are themselves only round numbers once more. Therefore it does not exempt the judge from making finite, purely positive decision since on the contrary such decision is still left to him by the necessities of the case (7). This conclusion is true as experience of law-making and law enforcement practice reveals that the legislator aims to more completely regulate any given social relations within the law. However, wherein certain parties of social relations objectively deny their strict and detailed regulation, the legislator regulates such relations by establishment of general abstract of law. At this the legislator in advance counts on specification of the latter in the process of enforcement knowing that this specification shall be done within the limits of initial norms (8). This statement is also supported by Hegel: a requirement to law is that it should be absolutely finished, and incapable of any definitions on the form of speculations on the content of regulation is absolutely wrong and rests upon misunderstanding of the nature of such finite objects as positive law, whose so-called perfection consists simply in perennial approximation (9). During contemporary history this Hegel's idea was evolved by foreign scholars who also supported the need for legislative interpretation in view of abstractness of law presentation: For the rule is made up of series of words, nexus of linguistic symbols, every norm of law has an ability of expansion. Misunderstanding of nature of language and perceiving words and something having fixed content, the law enforcers often do not notice hidden work they perform to which lies in their reformulation (10). …