On the Significance and Prospects of Judicial Lawmaking as a Mechanism for Ensuring Legal Certainty in Ukraine
Year: 2025
Type: article
Abstract: It is determined that judicial lawmaking, i.e., the specific activity of judicial bodies consisting in the creation of legal norms through court decisions made in the resolution of particular cases, constitutes an essential element of Ukraine’s legal system, especially in the context of the rapid transformation of social relations and the necessity to improve legislation. Judicial lawmaking is viewed as a legal phenomenon that combines aspects of legal certainty and the flexibility of judicial practice. The focus is on the peculiarities of implementing this mechanism within Ukraine’s legal system, which is undergoing a transformation aimed at harmonization with European standards. It is noted that the principle of legal certainty, enshrined in the practice of the Constitutional Court of Ukraine and the European Court of Human Rights, is a crucial guarantee requiring predictability and consistency in the application of law, which, in turn, depends on the quality of judicial decisions. Particular attention is paid to the role of the Supreme Court (Ukraine) in ensuring a balance between the stability of legal application and the necessity to consider the specific circumstances of individual cases. The article examines a practical example of a change in the Supreme Court’s legal position depending on changes in case circumstances, which contributes to achieving justice and flexibility in legal application. Specifically, the category of cases involving crimes against traffic safety and the operation of transport is analyzed, where the change in the Supreme Court’s legal position became a significant mechanism for ensuring the proper qualification and determination of the subject of a criminal offense. It is emphasized that such changes in judicial practice do not contradict the principle of legal certainty; on the contrary, they facilitate its realization through clarification and detailing of the content of legal norms. It is noted that judicial lawmaking in Ukraine holds significant potential for further development but requires a systematic approach that ensures a balance between adherence to the principle of legal certainty and the ability to respond promptly to dynamic changes in social relations. Attention is given to the importance of harmonizing the approaches of the Supreme Court with the practice of the European Court of Human Rights, which will promote the rule of law and legal stability.
Source: Constitutional State
Authors: V. S. Veremchuk, D. O. Kozynska
Institution: Odesa I. I. Mechnikov National University
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: diamond
OpenAlex ID: W4409767556