Judicial lawmaking: a natural feature of justice or its anomaly?

Abstract

The article is devoted to judicial lawmaking and its features. In article is analyzed one of the most common question that is often asked by legal scholars and that still has no definitive answer, the question that has spurred sharp debates and discussions: "Do judges create rules of law?"
 Naturally, it is the judiciary, that is the court, called to administer justice. In resolving court cases, the court is obliged to use the rules of law created by the authorized bodies. However, there are situations when certain relationships remain unresolved. This is primarily due to the fact that relations in society are developing faster than the law itself. The court has no right to deny a citizen a decision only because the law lacks a relevant rule of law. Therefore, the judge in each case takes responsibility - creates a rule of law to decide the case. The process of judges creating rules of law is called lawmaking.
 Considerable attention was paid to the historical origins of judicial lawmaking, the positions of the most prominent jurists on this topic were analyzed, among them, H. Hart, R. Dworkin, H. Kelzen. The views of retired judges of the Constitutional Court of Ukraine Mykola Ivanovych Kozyubra and Stanislav Volodymyrovych Shevchuk on this issue were also taken into account. It is emphasized that after the First World War the bodies of constitutional control in European states tend to change the provisions of the legislation by their decisions. This indicates the existence of judicial lawmaking.
 We have concluded that judges do create rules of law. Moreover, law-making is an immanent feature of justice, that is, one that follows from its inner nature. Judges create rules of law regardless of the type of legal family, regardless of whether judicial precedent is recognized as a source of law or not.