Abstract
<p>The subject of the article is to determine the extent to which the judicial interpretation of the law is affected by the use of an open axiology argument in the course of adjudication. Assuming that the use of open criteria is based primarily on the application of the legislative construction of general reference clauses, it is important to link these references to a legislative policy in which they constitute a means of deliberately extending the scope of discretionary power, derived from natural (independent of the legislator) sources. The essential function of the references is the axiological opening of findings made in all essential phases of judicial interpretation – validation, reconstruction and construction, resulting, among other things, in a change in the relationship between the roles of particular interpretation rules. This may lead to various manifestations of abuse of the interpretative discretion of judges, which in turn necessitates the search for certain remedies, among which the formation of permanent lines of jurisdiction and precedential practice, as well as the transparency of the reasoning of judgements, seems to be of the utmost importance.</p>
Highlights
The paper1 discusses the impact of the reference to the open axiology on the practical interpretation undertaken in the process of judicial implementation of law in the statutory legal order
The general reference clauses opening the legal system through such criteria like rules of rightness, good customs, good faith, rules of social coexistence, social interest, etc., are examples of such constructs
U to be rational should predict the major effects of the implementation of general clauses, taking into account the properties of the legal branches, social and political system or the features of the legal practice, including the differences between the administrative and judicial application of law
Summary
M The subject of the article is to determine the extent to which the judicial interpretation of the law is affected by the use of an open axiology argument in the course of adjudication. The essential function of the references is the axiological opening of findings made in all essential phases of judicial interpretation – validation, reconstruction and construction, resulting, among other things, in a change in the relationship between the roles of particular interpretation rules. This may lead to various manifestations of abuse of the interpretative discretion of judges, which in turn necessitates the search for certain remedies, among which the formation of permanent lines of jurisdiction and precedential practice, as well as the transparency of the reasoning of judgements, seems to be of the utmost importance
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