The Role of Judicial Lawmaking in the Establishing of the Rule of Law Principle.

Abstract

This thesis is devoted to a comprehensive study of judicial lawmaking and its role in establishing the principle of the rule of law. This paper argues that judicial lawmaking is an important component in establishing rule of law principle as a guarantee for the majority of sub-components comprising it based on the presumption of the inalienable importance of justice in the final establishment and strengthening of law primacy. To prove that, this paper applies the basic forms and techniques of reasoning based on understanding of several logical categories, laws of critical thinking and on the basis of etymological analysis of the meaning of the word "assertion" and the meaning of construct "assertion of the rule of law”, taking into account the work of international institutions, in particular on the formulation of a checklist for assessing the rule of law in a particular state, and the legal positions of the ECHR.

In Chapter 1 "Theoretical and Methodological Fundamentals of Judicial Lawmaking Research" it is shown that the vast majority of existing formulations of the concept of judicial lawmaking in the scientific domain use the method of determining the very term "law-making." The paper suggests to abandon such approach and provides several reasons in support of such approach. Firstly, the term "lawmaking" is not completely unambiguous and generally accepted, and secondly, the definition of judicial lawmaking is not an integrative term that is fully covered by the two words that make it up, but may go beyond their traditional perception (judicial lawmaking). not absorbed as a kind of concept by the generic concept of "lawmaking"). Taking into account the above remarks, the definition of the concept of judicial lawmaking with the rules of formal logic is formulated.

Chapter II "Rule of Law and Judicial Lawmaking: from Implementation to Establishing" further develops the provision that strict adherence to the rule of law will strengthen the authority of the judiciary and reinstatement of trust in it, which as a consequence will contribute to law supremacy, provide opportunities for a fair trial, and will raise the legal awareness in society. It has been shown that such vicious circle statement like "the rule of law principle must serve to uphold the rule of law concept" is not a logical error, because realizing this, it seems realistic to ‘break’ this circle and turn it into an algorithm, a sequence of steps and reforms, most of which should be aimed at reforming the judiciary.