TRANSCENDENTAL NATURE OF JUDICIAL ACTIVISM

Abstract

The article is devoted to the study of the phenomenon of judicial activism, and also to the identification of its main characteristics, role in the national justice system, and also to clarification of its deep essence.The author analyzes the legal positions of foreign and domestic scholars on the advantages and disadvantages of judicial activism at the present stage. The author proposes to define judicial activism as a legal instrument that is covered by the court’s competence to interpret current legislation to fill in the gaps in legal regulation based on existing rules, legal principles, and values, and with a view to effective protection of rights and freedoms in court. It is noted that the characteristic features of judicial activism are: close connection with the process of choosing among several possible solutions; dependence on a certain uncertainty of legal norms; exercise of discretion within the established limits and focus on bridging the gap between general legal norms and specific social relations, which makes it possible to make not only lawful but also fair court decisions. The author emphasizes that appealing to the principles and values of law as the basis for forming a legal position plays a crucial role in the implementation of judicial activism, which creates a legal basis for an expanded interpretation of legal norms and helps to find answers to questions related to the application of law. The author analyzes the experience of the Court of Justice of the European Union, which, with the help of judicial activism, made decisions that laid the foundations of the modern legal order and further development of integration processes in the EU. The author emphasizes the peculiarities of judicial activism in the practice of the Supreme Court of Ukraine. The author concludes that to understand the essence of judicial activism, one can use such a philosophical category as “transcendence", reflecting the borderline position of judicial activism between legal positivism and judicial lawmaking.