Some observations regarding the law-making nature of the Supreme Court of Ukraine’s opinions on application of law

Abstract

Having examined the legal properties of legal opinions of the Supreme Court of Ukraine embodied in provisions of Ukrainian law in view of the concept asserting the law-making orientation of the legal opinions of the Supreme Court as well as in view of the concept stating that all the outcomes of judicial application of law only specify and individualize law without changing or repealing any existing legal norms, the author concludes that at the moment, despite the proximity of legal opinions to the legal norms in terms of their universally binding nature and their establishment of rules of conduct beyond the literal reproduction of the relevant legislation, a more convincing scientific justification has the thought that the legal opinions of the Supreme Court of Ukraine only set out the results of interpretation of legal norms and determine the way to specify its meaning to the extent necessary to determine the rights and duties of parties to particular relationships based on their individual features. It is noted that there is no reason to state categorically that, having determined the pattern of correct application of law, the Supreme Court of Ukraine filled it with a completely new meaning, which does not follow from this or other rules of law. The author argues that the formation of a completely new legal rule by the Supreme Court is impossible, given that there are no phenomena that have legal significance and are not covered by the legal rules and regulations, at least, by the most abstract legal instruments. Moreover, the law-making nature of the Supreme Court's legal opinions is not substantiated by the fact that they are officially recognized as derived from legal norms, the proper application of which they determine, while the rule of law is always the primary legal regulator and has no external source of legal force. It should also be taken into account that the legal opinion of the Supreme Court cannot be a self-sufficient legal basis for resolving the issue of law.