Summary
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.
The article is devoted to the analysis of the core points of Gustav Radbruch's legal philosophy and "Radbruch formula" in particular. The article reveals the content of his axiological theory that includes three main types of values: individualistic (related to a person), supra-individualistic (related to a nation) and transpersonal (related to a culture). Moreover, the Radbruch's understanding of the notion of "law" has been researched. In addition, the analysis of the concept of the "idea of law", developed by Radbruch, which consists of three elements,-justice, certainty and purposiveness (expediency),-has been conducted. The paper reveals the politically determined sense of the legal expediency and its relation to the specific political ideologies: Liberalism, Conservatism, Socialism and Nationalism. The article also researches the issue of the hierarchy of the elements of the idea of law, which seems to be very entangled and inconsistent-at least in the work named «Legal Philosophy» (1932). Furthermore, it has been defined and analyzed the hierarchy in Radbruch's postwar articles "Five Minutes of Legal Philosophy" (1945) and "Statutory Lawlessness and Supra-Statutory Law" (1946), in which it looks more clearjustice is on the top, certainty has the second place, and the purposiveness is of the least importance. The concept of the socalled "Radbruch formula", which means the non-recognition of lawfulness of statutes, which have nothing in common with the principles of justice and equality, has been studied. The article investigates some specific cases from German judicial practice of different years, which clearly demonstrate the application of Radbruch formula as lawful and effective example of contra legem adjudications: 1) Goettig-Purrfarken case; 2) GDR frontier guards case; 3) citizenship of German advocate Jew case. Herewith, the analysis of Robert Alexy's views on this question has been conducted.
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