<abstract xmlns="http://www.w3.org/1999/xhtml"><p>The aim of this paper is to reveal and examine law-making elements in the jurisprudence of the Constitutional Court of Ukraine. It should be noted that the Constitutional Court has no direct powers to establish new legal norms under national legislation. However, in the process of constitutional interpretation, the case law of the Court demonstrates <italic>de facto</italic> the presence of law-making activity, that leads to the extension of its discretionary power on the formation of law. The paper will focus on the analysis of the practice of the Constitutional Court of Ukraine with regard to the ‘creative interpretation’ of law. A review of selected case law leads to a conclusion that the Constitutional Court often uses the dynamic interpretation of the Constitution. Moreover, the Court may change its own legal position in order to protect constitutional rights. Thus, the Constitutional Court of Ukraine has the right to ‘develop’ the law through evolutive interpretation of the Constitution. It can also be concluded that the Constitutional Court enjoys a wide ‘margin of appreciation’ in its interpreting of the Constitution.</p></abstract>

The aim of this paper is to reveal and examine law-making elements in the jurisprudence of the Constitutional Court of Ukraine. It should be noted that the Constitutional Court has no direct powers to establish new legal norms under national legislation. However, in the process of constitutional interpretation, the case law of the Court demonstrates de facto the presence of law-making activity, that leads to the extension of its discretionary power on the formation of law. The paper will focus on the analysis of the practice of the Constitutional Court of Ukraine with regard to the ‘creative interpretation’ of law. A review of selected case law leads to a conclusion that the Constitutional Court often uses the dynamic interpretation of the Constitution. Moreover, the Court may change its own legal position in order to protect constitutional rights. Thus, the Constitutional Court of Ukraine has the right to ‘develop’ the law through evolutive interpretation of the Constitution. It can also be concluded that the Constitutional Court enjoys a wide ‘margin of appreciation’ in its interpreting of the Constitution.

Law-Making Activity in the Case Law of the Constitutional Court of Ukraine

International and Comparative Law Review

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

{"article-title":"Law-Making Activity in the Case Law of the Constitutional Court of Ukraine"}

The aim of this paper is to reveal and examine law-making elements in the jurisprudence of the Constitutional Court of Ukraine. It should be noted that the...

Law-Making Activity in the Case Law of the Constitutional Court of Ukraine

Publié en ligne: 07 févr. 2020

Pages: 27 - 75

DOI: https://doi.org/10.2478/iclr-2019-0014

Mots clés
Constitutional Court, constitution, law-making activity, dynamic interpretation, development of law, creative interpretation, margin of appreciation, legal evolution, discretionary power, case law

© 2019 Kristina Trykhlib, published by Sciendo

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

Law-Making Activity in the Case Law of the Constitutional Court of Ukraine

Publié en ligne: 07 févr. 2020

Pages: 27 - 75

DOI: https://doi.org/10.2478/iclr-2019-0014

Mots clésConstitutional Court, constitution, law-making activity, dynamic interpretation, development of law, creative interpretation, margin of appreciation, legal evolution, discretionary power, case law

© 2019 Kristina Trykhlib, published by Sciendo

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

Mots clés
Constitutional Court, constitution, law-making activity, dynamic interpretation, development of law, creative interpretation, margin of appreciation, legal evolution, discretionary power, case law