“JUDICIAL LAWMAKING”: PRO ET CONTRA Текст научной статьи по специальности «Право»

Justice / Правосудие

UDC 340

DOI: 10.37399/issn2686-9241.2020.2.7-28

"Judicial Lawmaking": pro et contra

Valentin V. Ershov*

* Russian State University of Justice, Moscow, Russia For correspondence: evv@rsuj.ru

Introduction. As a result of the application in scientific research of descriptive and objective-teleological methods of studying legal phenomena, a number of foreign and Russian scientists often describe only truly objectively existing legal phenomena, including "judicial lawmaking". Theoretical Basis. Methods. From the position of scientifically grounded concept of integrative legal understanding, according to which the system of law first of all synthesizes only the principles and norms of law contained in a single, multi-level and developing system of forms of national and international law, implemented in the state, the article concludes that it is possible to highlight two types of "judicial lawmaking" in the special literature: "moderate" and "radical" types of "judicial lawmaking".

Results. "Moderate judicial lawmaking" is allowed only outside the law, its results are not binding on other courts, as the "norm" created by the court is only applicable ex post, only to a particular dispute and is not binding on other courts. In the opinion of the author of the article, this result of "moderate judicial lawmaking" is theoretically more reasonable to be considered as a kind of wrong - as "court positions" obligatory only for participants of individual judicial process, developed in the process of consideration and resolution of individual dispute as a result of interpretation of principles and norms of law.

Discussion and Conclusion. Researchers - supporters of the "radical" type of "judicial lawmaking" allow the development of "judicial precedents of law" "through the law, beyond and against the law" (contra legem). It seems to the author that this type of "judicial lawmaking" is based on the scientific discussion concept of integrative legal understanding, according to which the heterogeneous social phenomena - right and wrong - are synthesized in the unified system of law (for example, law and individual judicial acts, including those containing specific positions of the court). New concepts and their definitions have been introduced into scientific circulation. The author concludes that the "radical" kind of "judicial lawmaking" is theoretically debatable, and practically counterproductive.

Keywords: descriptive and objective-teleological methods of investigation of the legal phenomena - ex nunc, gaps in law, judicial positivism, integrative legal understanding, "judicial lawmaking", judicial activism, evolutive interpretation of law, literal interpretation of law, concretization of law, "court positions", specific law, specific court practice, law principles, legal norms

For citation: Ershov, V.V., 2020. "Judicial lawmaking": pro et contra. Pravosudie = Justice, 2(2), pp. 7-28. DOI: 10.37399/issn2686-9241.2020.2.7-28

«Судебное правотворчество»: pro et contra В.В. Ершов*

* ФГБОУВО «Российский государственный университет

правосудия», г. Москва, Россия

evv@rsuj.ru

Введение. В результате применения в научных исследованиях дескриптивного и объективно-телеологического методов изучения правовых явлений - ex nunc ряд зарубежных и российских ученых нередко лишь описывают действительно объективно существующие правовые явления, в том числе «судебное правотворчество».

Теоретические основы. Методы. В статье с позиции научно обоснованной концепции ин-тегративного правопонимания, в соответствии с которой в системе права прежде всего синтезируются только принципы и нормы права, содержащиеся в единой, многоуровневой и развивающейся системе форм национального и международного права, реализуемые в государстве, сделан вывод о возможности выделения в специальной литературе двух видов «судебного правотворчества»: «умеренного» и «радикального». Результаты исследования. «Умеренное судебное правотворчество», теоретически точнее - «судебное творчество неправа» или «судебное неправотворчество», допускается только за пределами закона, и его результаты не обязательны для других судов, поскольку созданная судом «норма» применима только ex post, лишь к конкретному спору и не является обязательной для других судов. По мнению автора статьи, данный результат «умеренного судебного правотворчества» теоретически более обоснованно рассматривать как вид неправа, «судебное творчество неправа» или «судебное неправотворчество» -как «позиции суда», обязательные только для участников индивидуального судебного процесса, выработанные в процессе рассмотрения и разрешения индивидуального спора в результате толкования принципов и норм права.

Обсуждение и заключение. Научные работники - сторонники «радикального» вида «судебного правотворчества» допускают выработку «судебных прецедентов права» «через закон, дальше закона и против закона» (contra legem). Как представляется автору статьи, данный вид «судебного правотворчества» основан на научно дискуссионной концепции интегративного правопонимания, в соответствии с которой в единой системе права синтезированы разнородные социальные явления - право и неправо (например, закон и индивидуальные судебные акты, в том числе содержащие и конкретные позиции суда). В научный оборот введены новые понятия и их определения. Автором сделан итоговый вывод: «радикальный» вид «судебного правотворчества» является теоретически дискуссионным, а практически - контрпродуктивным.

Ключевые слова: дескриптивный и объективно-телеологический методы исследования правовых явлений - ex nunc, пробелы в законе, пробелы в праве, юридический позитивизм, интегративное правопонимание, «судебное правотворчество», «судебное творчество неправа», «судебное неправотворчество», судебный активизм, эволютивное толкование права, буквальное толкование права, конкретизация права, «позиции суда», определенное право, определенная судебная практика, принципы права, нормы права

Для цитирования: Ершов В.В. «Судебное правотворчество»: pro et contra // Правосудие. 2020. Т. 2, № 2. С. 7-28. DOI: 10.37399/issn2686-9241.2020.2.7-28

Introduction

U nfortunately, many foreign and Russian researchers, applying a descriptive method of research of legal phenomena, limit themselves to only describing them. This fully applies to the analysis of the theoretical and practical problems of "judicial lawmaking", which are hidden but obviously

widespread in the world. By applying an objective and teleological method of interpretation of normative legal acts, as a rule aimed mainly at finding the most "fair" and "reasonable" meaning of laws, researchers have traditionally identified a significant number of gaps in them. Proceeding from the idea of the unacceptability of denial of justice and the recognition by the court as a fact that insufficient work has been done by the legislative bodies, these researchers have come, at least in their opinion, to a reasonable conclusion about the inevitability and acceptability of "judicial lawmaking", at least in cases where the court has established gaps in the existing laws. This leads, as a rule, to undefined law and undefined court practice, endless cancellations of court sessions and lengthy court proceedings. And most significantly, as a result - to the violation of the rights and legal interests of individuals and legal entities.

Theoretical Basis. Methods

The established legal categories are in theory more justifiable and in practice more productive as subjects of investigation in accordance with the basic types of legal understanding established in the world as a whole, including Russia. In my opinion, legal positivism and integrative legal understanding can be primarily singled out among such types of legal understanding. In turn, integrative legal understanding is traditionally differentiated into two types. An integrative legal understanding that unites heterogeneous social phenomena - right and wrong, and an integrative legal understanding that concerns only heterogeneous social phenomena -law and right [Ershov, V.V., 2018, pp. 82-108].

The category "wrong" (unrecht) from the point of view of the philosophy of law was studied productively and deeply by H. Hegel. As G.A. Gadzhiev reasonably noted, the aspects of the philosophy of law that have been little explored by scholars include "...reality of wrong along with the space of right" [Gadzhiev, G.A., 2013, p. 68]. H. Hegel, analysing the category of "wrong", pointed out: "Denial is wrong... proceeds in wrong to become a show, an opposition between the principle of rightness and the particular will as that in which right becomes particularized" (emphasis added) [Hegel, H.W.F., 1990, p. 137]. In this philosophical approach, the "wrong" becomes the "appearance" of the "right", the "special right", the "quasi-right", which differs significantly from the actual right. Unfortunately, these ingenious conclusions of Hegel did not receive due attention or development in scientific research in the field of law either by foreign or Russian researchers.

As is known, the concept of "positivism" is derived from the Latin "jus positum" - the law established by public authorities, the law developed by the "winner", as it is figuratively referred to by some commentators. Consequently, in essence, "all" law from the standpoint of legal positivism is limited only to the acts of public authorities. John Austin, who was one of the first in the 19th century to develop, in a systematic way, the theory of

legal positivism, distinguished between the law "as it is" and "as it should be". "Law as it is", according to J. Austin, is a positive law established by human authorities (hence the name - posited, given its position). So, according to J. Austin, law is a sovereign's command. J. Austin's theory of law is traditionally called "a command theory", because the law in his understanding is a sovereign's command. The law, he understood simplisti-cally, comes directly or indirectly from the sovereign only. Anything that does not come from a sovereign is not law. Thus, in the person of J. Austen "...legal theory... sought the key to understanding the law in the simple idea of a command backed by threats" [Hart, H.L.A., 1961]. This approach was continued by H. Kelsen, who believed that "legal norms can have any content" [Kelsen, H., 2007, p. 113].

Legal positivism, widespread throughout the world, including Russia, is characterized by the recognition of right primarily by "laws", "legislation", or, more precisely, by normative legal acts adopted by legislative and executive bodies of state power, as well as other acts established by judicial bodies. This, in today's world, is, in my opinion, in theory unconvincing, and in practice insufficiently productive. Real practice has shown that in reality there is not a single source of law, but rather different sources and forms of law, both international and national [Ershov, V.V., 2018, pp. 161-177]. Ongoing gaps and conflicts in the legislation do not lead to, as needed, the timely development of defined law, defined and expected court practice, which cannot but affect the effective protection of the rights and legal interests of the subjects of legislation. At the same time, gaps and conflicts in the law give rise to endless and, in my opinion, controversial discussions about the practical necessity of "judicial lawmaking", judicial activism and the evolutionary interpretation of law by the courts.

H. Hart singled out two main areas of criticism of legal positivism. According to the first one, there are some principles of human behaviour with which laws must coincide in order for them to have legal force [Hart, H.L.A., 2007, pp. 74-77]. R. Dworkin went along this path, "I call a 'principle' a standard that should be observed not because it contributes to changing or reducing some economic, political or social situation, but because it expresses some moral requirements, be it requirements of justice, honesty, etc." (emphasis added) [Dworkin, R., 2004, p. 45].

The second approach, which was followed by H. Hart himself, involves the combination of legal reality and moral value [Hart, H.L.A., 2007, p. 188]. At the same time, I think that the directions of criticism of legal positivism mentioned by H. Hart are very close in essence. In support of this conclusion it is possible to cite, for example, Hart's reflection: "...the names of the actual right must be deprived of certain rules because of their extreme moral injustice" [Hart, H.L.A., 2007, p. 188]. I believe that, in reality, the theoretical views of both Hart and Dworkin are based on the diverse integration of heterogeneous social regulators of right and wrong, such as laws and justice.

In this regard, there is a need to revisit the analysis of the "wrong" category. "In wrong," ingeniously emphasized Hegel, "appearance proceeds to become a show. A show is a determinate existence inadequate to the essence, the empty disjunction and positing of the essence, so that in both essence and show the distinction of the one from the other is present as sheer difference" [Hegel, H.W.F., 1990, p. 138]. As V.A. Ba-chinin convincingly believes, "...Hegel actively used the category of wrong, designating by it a special will, demonstrating arbitrariness and separation of an individual from universal will and universal law..." [Bachinin, V.A., 2001, p. 14]. With this convincing philosophical approach, the wrong characterizes the "individual will", "demonstrating the arbitrariness and sepa-rateness of the individual". Whereas the right, by contrast, is the "universal will" of the "universal law".

In my opinion, the right is expressed first of all in the principles and norms of law, which are binding on an indefinite number of subjects of legal relations and establish their interrelation and interdependence in the world, rather than "the separation of an individual from the universal will and universal law". With this philosophical approach, the integration of different social elements - right and wrong - into a single system is in theory debatable, but in practice counterproductive.

"The show is the falsity," Hegel continues the discussion, "which disappears in claiming independent existence; and in the course of the show's disappearance the essence reveals itself as essence, i. e. as the authority of the show" [Hegel, H.W.F., 1990, p. 138]. This allows us to come to the following conclusion: "wrong" is "false right", which historically must gradually disappear, and in this disappearance the actual right will be cleared of "wrong", "false right", by showing its objective and actual attributes of right, which differ from characteristic and special attributes of "wrong". Thus, according to Hegel, "The essence has negated that which negated it and so is corroborated. Wrong is a show of this kind, and, when it disappears, it acquires the character of something fixed and valid... Hitherto the being of the right has been immediate only, but now it is actual because it returns out of its negation. The actual is the effectual; in its otherness it still holds fast to itself, while anything immediate remains susceptible of negation" [Hegel, H.W.F., 1990, p. 138]. Consequently, V.A. Sokolnikova rightly points out that "wrong is as necessary as right, as it allows the latter to strengthen itself in society" [Sokolnikova, V.A., 2013, p. 72].

In connection with the philosophical arguments presented, I believe it is possible to draw the following conclusion: the right in the process of "purification" of the wrong comes out more strengthened and defined, because as a result, the objective and mismatched features of both the right and the wrong are clarified and distinguished. The right seems to be characterized mainly by a greater degree of certainty, binding and enforcement. "Wrong" is a lesser degree of certainty, binding and non-compliance.

Thus, right, "having returned" from its "negation by wrong" "becomes actual, as the actual is the effectual; in its otherness it still holds fast to itself" [Hegel, H.W.F., 1990, p. 138], i. e. more definite, effective and productive. In the end Hegel came to a brilliant conclusion, "Wrong is the show of the essence, putting itself as self-subsistent" [Hegel, H.W.F., 1990, p. 138]. This allows us to summarize: "wrong" is not a kind of actual right, but only the appearance of actual right.

Hence, various social regulators of social relations, including right and wrong, should not be scientifically identified and synthesized in a single system. I think it is in theory convincing. However in practice it is more productive to refer to the wrong, first of all, by various social regulators of social relations, mediating relations, formed between both an indefinite and definite number of its participants, which are characterized by a lower degree of certainty, social connection and interdependence, rather than by the "arbitrariness" and "detachment" of the participants of social relations; optional and non-obligatory execution. The second kind of wrong is social regulators of legal relations, which provide more certainty, interrelationship and interdependence, rather than the "arbitrariness" and "detachment" of the participants of legal relations.

For example, the first type of wrong - a variety of social regulators of public relations have developed in practice between an indefinite number of their participants - I think covers moral and religious norms, "soft" right, "quasi-right", etc. To the wrong of the second kind - the numerous social regulators of public relations, established between a definite number of participants, I think it is possible to include individual agreements, individual court acts, "court precedents of law", "court positions", etc.

In addition, I would also like to join A.F. Cherdantsev in his next, in theory, convincing conclusion: "From the point of view of ontology, we should not include diverse phenomena in the notion of law. In this situation, the law is deprived of ontological homogeneity, monolithic and becomes a phenomenon of uncertainty" [Cherdantsev, A.F., 1999, p. 203].

It is thus scientifically sound to include only homogeneous elements of right and law in a single legal system. For a long time, from the point of view of legal positivism, only the rules of law referred to them. For example, M.I. Baytin called his monograph published in the XXI century "The essence of law (modern normative legal understanding on the verge of two centuries)" [Baytin, M.I., 2005]. A.F. Cherdantsev wrote in 2012,"The norm of law is the primary element of law..." [Cherdantsev, A.F., 2012, p. 38].

A.M. Vasiliev and many other Soviet and Russian specialists in the field of general theory of law, I think, did not study the nature of the principles of law with sufficient conviction. This allowed T.G. Gordienko to make a reasonable conclusion,"Despite its theoretical and practical importance, the problems of law principles in modern legal science and educational literature on the general theory of law and state are not very popular" [Gordienko, T.G., 2000, p. 39].

The very word "principle" was borrowed from French and German in the XVIII century and dates back to the Latin principium - the beginning, the basis. The etymological meaning of the word "principle" is "basis", "begin-ning","guiding idea", "basic rule of conduct". In ancient times it was emphasized: "The principle is the most important part of everything" principium est potissima pars cujugue rei). Aristotle understood the principle in the objective sense in the form of the first magnitude - that from which something exists or will exist.

It is important to emphasize: in the philosophical sense, "a principle is a theoretical generalization of the most typical, expressing regularities that form the basis of something". Thus, F. Bacon's judgment is quite typi-cal,"The principle is the primary and the simplest elements from which everything else was formed" [Bacon, F., 1937, p. 22]. I. Kant ingeniously emphasized, "The principle is that which contains the foundation of the universal connection of all that a phenomenon is" [Kant, I., 1963, p. 340].

Taking into account such widely known views on the principles of the greatest philosophers of the world, it is surprising to see views on the legal principles of many Russian lawyers in the XIX, XX and XXI centuries. Thus, G.F. Shershenevich, from the position of legal positivism, as the principles of law understood the general idea, the direction that the legislator consciously or unconsciously invested in a number of legal norms [Shershenevich, G.F., 1995, p. 15]. E.V. Vaskovsky's point of view, expressed by him without any of the required theoretical arguments, became widespread "The principles of law in general and of natural law in particular are controversial... the case will be reduced to a full and uncontrolled judicial discretion, which is not far from arbitrary" [Vaskovsky, E.V., 1997, p. 102].

With such views of the majority of pre-revolutionary Russian legal scholars, the other two views seem surprising and give profound scientific insights. Thus, L.A. Tikhomirov wrote,"The legislator himself must be guided by something, giving or not giving rights to an individual or defining any action as their duty" [Tikhomirov, L.A., 1998, p. 569]. Another (even more striking) example is Ya.P. Kozelsky's conclusions. In the "Philosophical Proposals" by Ya.P. Kozelsky, sent to A.A. Vyazemsky, chairman of a commission convened by Catherine II in 1767, one of the tasks of which was to improve the legislation, it was first of all proposed to differentiate between the terms "law" and "right". Secondly, Ya.P. Kozelsky went on to define the principles of law as "something immutable, fair and universal, so that the 'consumer laws' issued in the state always corresponded to them" [Kozelsky, Ya.P., 1959, pp. 353-354]. On the one hand, it is not surprising that in the far XVIII century Ya.P. Kozelsky could not define the nature of the principles of law, referring them to as an undefined "something". At the same time, Ya.P.Kozelsky established the correlation between principles and norms of law: principles of law are universal, and laws issued in the

state must comply with them. Thus, he proclaimed the paramountcy of the principles of law.

In 1970, E.A. Lukasheva, who was among the first in the USSR to make a theoretically insufficient, but still a step forward, defined the principles of law not as "ideas", but as objectively conditioned principles, "...according to which the system of law is built" [Lukasheva, E.A., 1970, p. 21]. Further in the same article E.A. Lukasheva deviated from this provision: "... the beginning, ideas are the principles of law" [Lukasheva, E.A., 1970, p. 22]. In 1972, S.S. Alekseev essentially repeated the conclusions of E.A. Lukasheva: the principle of law is "...the initial normative and guiding principles expressed in law, characterizing its content, its foundations, and the regularities of public life enshrined in it. Principles are that which permeates the law, revealing its content in the form of initial, cross-cutting 'ideas', main principles, normative and guiding provisions" [Alek-sev, S.S., 1972, p. 102]. In subsequent scientific works S.S. Alekseev tirelessly repeated: "Principles of law... are... ideas... contained in the norms" [Alekseev, S.S., 1989, p. 232].

Many Soviet and Russian researchers in the second half of XX century and at the beginning of XXI century reproduced the conclusions of E.A. Lukasheva and S.S. Alekseev. Thus, in the dissertation defended by A.V. Konovalov for the degree of Doctor of Law on "Principles of Civil Law...", I believe, but am not convinced by, the principles of law as being defined "... as objective, universal, global ideas about the most effective organization of the legal aspect of the social structure, reflecting the objective properties of the nature of people and objective regularities of social interaction..." [Konovalov, A.V., 2019, p. 56].

Concluding the analysis of our literature on the principles of law, I will cite the conclusion of A.F. Voronov which I share, "...in Russian legal science, as well as in legislative and law enforcement activities the attitude... described by the formula 'reign but do not rule' is outlined. Principles are formally worshipped, respected, written in books and placed in the first chapters and sections of laws, in particular codes, but when it comes to specific legislative or law enforcement work, they are often forgotten or ignored for the sake of momentary political, misunderstood professional or other 'expediency' " [Voronov, A.F., 2009, p. 5].

Due to the limited scope of the article, I will only outline the nature of the principles of law of some foreign researchers. Thus, G. Braibant considered the equivalent of general principles of law to be "... a natural right of justice" [Braibant, G., 1988, p. 175]. R. Dworkin called "principle" - "a standard which should be observed not because it promotes change or preservation of some economic, political or social situation, but because it expresses some demands of justice, honesty, etc." [Dworkin, R., 2004, p. 45]. A more detailed analysis of the positions of foreign researchers is presented in my monograph [Ershov, V.V., 2018, pp. 255-323].

Results

Further, I would like to investigate the problems of judicial lawmaking. Taking into account the given volume of the article, I have to confine myself to the analysis of only the main publications. In my opinion, the most typical in this field of scientific research at the turn of XIX-XX centuries and in the second half of XX century, was conducted in Germany, Austria, France and the USA.

At the end of XIX century in Germany dominated the pandectic doctrine of law; namely German scientists understanding of Roman law. While glos-sators sought to understand the meaning of Roman law, post-glossators adapted Roman law to new, modern conditions and tried to deductively answer new questions.

In the second half of the 20th century, Rudolf von Jhering presented a critical analysis of the pandectic doctrine in "Purpose in Law". In R. Jhering's opinion, the main role in legal analysis should be played by the evaluation of the goal that the norm has. "The purpose," wrote R. Jhering, "is the creative power of the whole of the law", "there is no legal provision that does not owe its origin to any purpose" [Jhering, R. von, 2006, p. 90]. This author, unfortunately, paid little attention to the problems of judicial lawmaking itself, but with this formulation of the question began the discussion of law.

Oskar Bulow, in his article "Legislation and Judicial Function" published in 1885, formulated a highly controversial conclusion that "legislation... is not a full source of law at all"; the courts are erecting a law building. Hence, law is the result of joint work of the legislator and courts [Bulow, O., 1995, p. 71]. Moreover, O. Bulow came to a more radical conclusion: he allowed for the interpretation of contra legem (which is contrary to the law).

Another famous German scientist Josef Kohler in the late XIX century supported an objective and teleological interpretation of law - ex nunc, aimed at finding the meaning of law, which would be the most reasonable and fair in the circumstances of law enforcement at that time. It should be specially noted that O. Bulow and J. Kohler studied a moderate form of "judicial lawmaking", which is relevant only for the dispute in question [Kohler, J., 2006, p. 49]. Zitelman, on the other hand, proposed in 1889 to recognize the binding role of judicial practice to ensure equal justice for all and protection of participants in the process.

Eugen Ehrlich, a well-known Austrian professor, who developed the teachings of the doctrine of R. Jhering, O. Bulow, J. Kohler and other German scientists, in the early XX century, gave special emphasis to the "living" law, believing that the "written" law did not always meet the real needs [Ehrlich, E., 1917, pp. 47-58, 60]. In the opinion of E. Ehrlich, in connection with new social realities, the "written" law should be applied in the spirit of the new times [Ehrlich, E., 2002, p. 174]. As a result, E. Ehrlich, on the one hand, advocated "free judicial lawmaking", calling it "free finding of the law" [Herget, J.E. and Wallace, S., 1987, p. 410]. On the other,

E. Ehrlich acknowledged the need to restrict judicial lawmaking, which in his opinion should be "in harmony" with the principles of current law and legal science. The court may develop the law, but, as the scholar emphasized, only within the framework of current law without shaking or replacing it [Ehrlich, E., 2002, p. 340]. Taking into account the stated theoretical conclusions, in cases of developing the norms of law in "harmony" with the principles of law (in my opinion, more precisely, the principles of law actually becoming statutory law), E. Ehrlich can no longer be called a real and unconditional supporter of "free judicial lawmaking", but of a more radical form of "judicial lawmaking".

German Kantorovich, under the pseudonym of Gnaeus Flavius, in his work "The Struggle for Legal Science" [Gnaeus Flavius, 1906] summarized the discussions about the science of German law at the turn of XIX-XX centuries. This work presents the developed concept of "movement for free law", which essentially coincided with the concept of E. Ehrlich's concept of "free finding of the law". The general sense of the "free law movement" was to defend a freer "judicial lawmaking" and an objective and teleological method of law interpretation. The objective and teleological interpretation of laws - ex nunc, according to G. Kantorovich, was expressed in understanding of laws taking into account the vision of modern optimal goals of legislative regulation of public relations. At the same time, in 1911 G. Kantorovich specified: free "judicial lawmaking" cannot be carried out contra legem (contrary to the law) [Curran, V.G., 2001, p. 163].

Gustav Radbruch also advocated an objective and teleological interpretation of laws ex nunc [Radbruch, G., 1915, pp. 123-124]. In particular, G. Radbruch examined the elements, which, in his opinion, contradicted each other: the principles of separation of powers, the rules of inadmissi-bility of denial of justice and the fact of an inevitable gap in positive law. In these cases, according to the scientist, the principle of separation of powers should give way to the indisputable rule that justice cannot be denied [Radbruch, G., 1915, pp. 67-68].

At the same time, according to the scientifically grounded concept of in-tegrative legal understanding, which synthesizes the principles and norms of law contained in all forms of national and international law (and not only in the form of national normative acts, which was characteristic of legal positivism), namely that there can be no gap in law. Any gap in law can only be imaginary. With this theoretical approach, the question of whether justice should be denied does not arise. Consequently, in the presence of legal principles governing legal relations, there is no reason to deny justice. Principles of law may be independent legal grounds for issuing judicial acts. At the same time, in G. Radbruch's opinion, when faced with gaps in the law, a judge may make a decision based on a subjective understanding of the objectives of the law [Radbruch, G., 1915, pp. 123-124]. The most important of these goals is justice. The second is appropriateness.

The third is the stability and predictability of the law. According to G. Radbruch, these three principles are at the heart of law [Radbruch, G., 2004, p. 86-91]. However, in my opinion, firstly, justice, expediency, stability and predictability are not principles of law. Secondly, in practice, the application of such "principles of law" by the courts may lead to uncertain judicial practice.

P. Heck was the leader of the doctrine of "jurisprudence of interests". Developing R. Jhering's conclusions, he believed that the protection of competitive social interests is at the heart of the law [Heck, P., 1948]. However, P. Heck believed that the rules developed by the courts in cases of a gap apply ex post to a particular dispute and do not become binding on future similar disputes as rules of law. In such cases, according to the scientifically sound concept of integrative law, it should, in my view, be the interpretation and application by the court of the principles and rules of law contained in other forms of national or international law, since "whitespace" zones can only be established in "law".

Analyzing the problems of "judicial lawmaking", it is impossible to ignore the "pure doctrine of law" of Hans Kelsen, in which the system of law was based on analytical positivism [Kudryavtsev, V.N. and Razumovich, N.N., eds., 1987]. According to H. Kelsen, any decision made by a court based on a more general rule of law creates a new rule. The individual rules created by the court ad hoc for each particular dispute, which develop the more general rules contained in the "law", as H. Kelsen considered, are the lowest link in the normative hierarchy. Consequently, H. Kelsen did not, in essence, distinguish between lawmaking and law enforcement. With this approach, positive "law" is, of course, seamless [Kelsen, H., 1990, pp. 132134]. However, by differentiating between lawmaking and law enforcement activities, it is possible to formulate an absolutely different conclusion: "elaboration" by the court of individual "norms of law" is in theory debatable, and in practice counterproductive. Moreover, unfortunately, H. Kelsen believed that individual "judicial lawmaking" can change or reject any rule of law [Kelsen, H., 1990, p. 135].

In France, at the first stage, the Civil Code adopted in 1804 enshrined Article 5, according to which the courts were categorically forbidden to create general rules. In order to prevent the free interpretation of laws, the French legislature established the Tribunal of Cassation (later - the Court of Cassation). The Court of Cassation of the French legislature had to respond to requests from the courts to the legislator. In practice, however, the work of the Tribunal of Cassation proved ineffectual [Merryman, J.H. and Perez-Perdomo, R., 2007, p. 40]. Perhaps for this reason, Article 4 was introduced into the French Civil Code (CCF), which prohibits denial of justice under the pretext that there is no applicable legal rule.

In my opinion, as a result of the appearance of Article 4 in the Civil Code of France, the gaps in the Code that arise for objective and subjective rea-

sons could be solved in court practice in at least two ways. The first is a scientifically sound transition from legal positivism to an integrative understanding of law, whereby courts could apply the principles and rules of law contained in all forms of both French and international law. The second way is an academic debate characterized by the integration of right and wrong, including the French Civil Code and "judicial lawmaking". As a result, the Tribunal of Cassation was reorganised into the Court of Cassation, which led the "judicial lawmaking" process. Thus, judicial practice, unfortunately, went the second way.

In 1899, Francois Geny's "Method of interpreting sources of positive private law" was published [Geny, F., 1954]. Acknowledging the inherit deficiencies of positive law [Geny, F., 1954, pp. 78-79], F. Geny deemed it possible to consider the "politics of law" in the "scientific search of law" taking into account the modern moral, economic values and goals of law. And the basic objective goals, according to F. Geny, are fairness and social benefit. In this regard, F. Geny put forward the slogan: "Through the Civil Code, but beyond it". Disagreeing with his opponents, who rebuked him for violating the concept of the separation of powers, Geny answered: "It is not necessary to make the principle of the separation of powers an absolute one", as he allowed free "judicial lawmaking" only in the gaps of positive law [Geny, F., 1954, pp. 361-363, 151, 457, 144]. Moreover, the "norm" created by the court, according to F. Geny, is applicable ex post only to a particular dispute and is not to be considered binding in subsequent trials. In these conclusions, it appears that F. Geny was essentially guided by the doctrine of separation of powers [Geny, F., 1954, pp. 325-327]. Consequently, F. Geny was not a supporter of the radical type of "judicial lawmaking". Proceeding from the objective and teleological interpretation of the law - ex nunc, which takes into account modern realities and needs of society, F. Geny, firstly, allowed, in my terminology, moderate "judicial lawmaking" only outside the law, and, secondly, did not consider its results obligatory for other courts. Consequently, in essence F. Geny acknowledged that the court, as a result of the interpretation of the law, does not work by the "norms" of the law, but the "positions" of the court, which other courts can only take into account because of their credibility and validity.

Raymond Saleilles, a supporter of the radical type of "court-lawmaking", paraphrased the main slogan of F. Geny and instead of "Through the Civil Code, but beyond it," suggested another - "Beyond the Civil Code, but through it". R. Saleilles allowed for such a judicial interpretation outside the will of the historical legislator, which would take into account the needs of changing times; and would disregard the courts' interpretation of the legislator's will, which covers up active and real "judicial lawmaking" [Sa-leilles, R., 1954].

In the USA the movement of legal realism was primarily devoted to the works of O. Holmes, J. Gray, R. Pound and B. Cardozo. Thus, in the USA

O. Holmes's name is connected with the formation of new legal paradigm -"pragmatic jurisprudence", which remains the dominant form at present. Judge O. Holmes called for recognition of the reality, that courts take part in lawmaking and carry it out, taking into account the analysis of the law policy [Tushnet, M., 1977, p. 1017]. In his famous work "Common Law" O. Holmes wrote, "Law lives by experience, not logic. Essential needs of the time, prevailing moral and political theories, intuitions in the field of public policy, conscious or unconscious, even prejudices, which are peculiar to judges, as well as to any citizen, have much more importance than syllogism when choosing legal norms, which regulate human behaviour. Law reflects the history of national development over many centuries...". In the Southern Pacific Cov. Jensen (1917) O. Holmes specified his position, namely that US Law is not a closed system of existing precedents, the courts, being the main lawmaker in American legal system, create and change the law. However, O. Holmes also was not a supporter of the radical type of "court lawmaking", considering that assessment and evaluation of the law policy is not the main task of the court. Holmes wrote,"...it would be undesirable, if judges had to renew the law. This is not their function".

In 1909, Harvard Law School Professor J. Gray published a paper "On the Nature and Sources of Law", in which he concluded, "What the courts decide is the law, because by interpreting the ambiguous text of the law they develop the position of the legislator, they legislate themselves" [Gray, J.C., 1948, pp. 84, 173]. J. Gray went on to make a significant and controversial addition: precedents are not law either, as they allow a certain amount of judicial discretion [Gray, J.C., 1948, p. 125]. J. Gray, in my opinion, adopts the point of view of the discussion concept of the integration of right and wrong, the heterogeneous social regulators of public relations synthesized into a single system of law the norms of law, judicial precedents, moral principles, scientific doctrines, etc. [Gray, J.C., 1948, pp. 123-124, 307-308]. Moreover, J. Gray suggested an unconvincing hierarchy of sources of law, in which he put the heterogeneous social regulators - laws, precedents, scientific doctrines and customs on the same level. In cases where these are inapplicable he suggested applying the principles of morality [Gray, J.C., 1948, pp. 288-289, 302]. J. Gray's last conclusion convinces me even more that his arguments are based on the discussion concept of an integrative understanding of law, according to which in a single system of law the heterogeneous social elements - right and wrong - are in theory unconvincing-ly synthesized.

Roscoe Pound, dean of Harvard Law School, became known in 1908 after the publication of the famous article "Mechanical Jurisprudence" [Pound, R., 1908, p. 605]. The concept developed by R. Pound explored public and private interests and the balance between them. R. Pound called this approach to law "sociological jurisprudence", or "legal pragmatism" [Pound, R., 1908, p. 609]. R. Round suggested that the dynamic

development of law cannot be achieved without "judicial lawmaking". In R. Pound's opinion, the principle of separation of powers only means that for the courts, lawmaking is not a primary function and has at best, a secondary character. The courts only supplement and modify the norms of the law [Pound, R., 1922, p. 105]. At the same time, the actual practice of developing and applying case law does not allow us to share the following conclusion of R. Pound: "The main reason why the case law doctrine as a source of law has been successful is that it, like no other doctrine, combines a certainty of law with its capacity for development" [Pound, R., 1921, p. 182]. I think that another conclusion is in theory more convincing and in practice more realistic - that innumerable problems of applying "judicial precedents" in practice often lead to uncertain law and uncertain judicial practice. At the same time, I would like to note that R. Pound opposed the radical type of "judicial lawmaking" and did not agree with the authors who were in favour of of completely depriving judges of such a prerogative.

U.S. Supreme Court Judge Benjamin Cardozo had views close to those of R. Pound. B. Cardozo's most famous book "The Nature of the Trial" was published in 1921. B. Cardozo, following O. Holmes and R. Pound, considered the judicial function above of as an achievement of substantial rationality - justice and public benefit [Cardozo, B.N., 1921].

Finishing a brief analysis of the positions of the supporters of judicial lawmaking, we cannot ignore the work of K. Llewellyn - the new leader of the movement that supported "judicial lawmaking" in the United States in the 30-40s. In 1930, K. Llewellyn expressed the following opinion: the law is how judges and other government officials really behave in relation to disputes [ Llewellyn, K.N., 1996, p. 3]. Unlike the prediction theory of O. Holmes, K. Llewellyn argued that it was not the prediction of court decisions, but the court decisions themselves that were the essence of the law [Green, M.S., 2005, p. 1928]. Moreover, K. Llewellyn emphasized: there is no precedent that the court could not ignore if need be [Llewellyn, K.N., 1996, p. 180]. This position seems unconvincing, and not one supported by proper argument.

I would defend the following thesis: since law is an equal measure for all, both law and jurisprudence should seek certainty; consequently, the stability and expectation of legal relations, i. e. of all of life's processes. In accordance with the, in my opinion, theoretically debatable, objective and teleological method of law interpretation - ex nunc, following which in the processes of law interpretation it is necessary to take into account contemporary realities and needs of society, the European Court of Human Rights in its real practice follows the concept of evolutionary interpretation of law. Thus, the European Court of Human Rights has repeatedly expressed the following position: "the Convention is not a stagnant legal instrument, but is open to interpretation in the light of the present day"; "the object and purpose of the Convention, as a legal instrument protecting human rights,

requires that its rules be interpreted and applied in such a way as to make its guarantees effective and enforceable" [Tumanov, V.A., 2001, c. 90-91]. From the same theoretical standpoint, R. Ryssdal, retired President of the European Court, on November 1, 1998, stated: the European Convention on Human Rights should be interpreted and applied as a living instrument following the development of our societies and not necessarily according to the intentions of the "founding fathers" in 1950 [Ryssdal, R., 1999]. R. Ryssdal's reservation seems very typical: I will immediately add and emphasise that "...an evolutionary interpretation, following the development of our societies, should not become judicial activism...".

In my opinion, it is the application of the objective and teleological method of law interpretation - ex nunc that results in judicial activism. In this connection, the conclusion of P.-Y. Monjal, Professor at Francois Rabelais University of France, on the jurisprudence of the European Court of Human Rights in relation to the Convention is also very revealing: "an unexpected turn of events characterized by a disregard for the sovereignty of States' Parties... the Convention's technique of interpretation in strict accordance with the general theory of law can only consist in a literal understanding by the European Court of Human Rights of the exact meaning of the Convention and its corresponding explanations... There are three separate opinions of judges on this mode of action of the European Court of Human Rights, largely based on the practice of the UN International Court of Justice (The Hague) in this area, which, unlike the Strasbourg Court, has a legal framework (primarily international customs of law. - V.E.) for the adoption of provisional measures. The judges who wrote the separate opinion argue that the Court of Strasbourg has thus extended its competence through lawmaking rather than judicial action [Monjal, P.-Y., 2015, p. 44].

One of the most active supporters of "judicial lawmaking" in Russia is P.A. Guk, who defended in 2012 his thesis "Judicial practice as a form of judicial rulemaking in the legal system of Russia: general theoretical analysis" for his Doctor of Law degree. In the author's abstract of his dissertation, P.A. Guk formulated, in my opinion, a very unconvincing conclusion in theory, that "A judicial precedent is a judicial decision of the highest judicial authority in a specific case, made within the framework of... a legal procedure (court proceedings), containing a legal provision (court norm), published in official collections and having an imperative to be applied to similar cases in the future" [Guk, P.A., 2012, p. 12]. But is it really the case?

Firstly, in Russia, "the highest judicial authority on a specific case" is the Presidium of the Supreme Court of the Russian Federation. According to, for example, part 4 of Article 391.12 of the Civil Procedural Code of the Russian Federation, "the instructions of the Presidium of the Supreme Court of the Russian Federation are binding" only "for the court which

re-examines the case". Secondly, the Supreme Court of the Russian Federation also adopts decisions of the Plenum (Article 126 of the Constitution of the Russian Federation) in order to develop unified judicial practice in Russia. According to Clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 19, 2003, No. 23 "On Judicial Decision", "when establishing contradictions between the norms of law to be applied in the consideration and resolution of a case, courts should take into consideration the explanations of the Plenum of the Supreme Court of the Russian Federation...". Thirdly, the notion of "statutory provision" is undefined from the perspective of legal theory. In fact, law contains primarily principles and rules of law. And finally, in Russia, courts of all levels, when considering specific cases, do not develop "judicial precedents of law", but "court positions"- the views, opinions of the court on any issues related to their competence, which by their nature belong to a type of wrong (unrecht). The "court's positions" are first and foremost developed both in the processes of consideration of individual disputes and adoption of judicial acts, administration of justice, and as a result of court activities not related to the administration of justice. An example of this is the adoption of decisions by the Plenum of the Supreme Court of the Russian Federation.

The past and present experience of England is also very typical. Relevant literature traditionally views England as a state where "court precedents" are predominantly "sources of law". In the process of examining in greater depth the forms of national English law, this conclusion is, in my opinion, controversial. "Judicial lawmaking" and the separation of powers are topics that are most directly related. The change in English scholars' approach to the problem of separation of powers is quite revealing. For example, N. Barber writes: "Opinions have changed dramatically - from the almost ubiquitous scepticism typical of 1960-1970 regarding the applicability of the example of separation of powers to the prevailing view of contemporary authors, according to which this principle is in fact directly related to the Constitution of the country" [Barber, N.W., 2001, p. 59]. The principle of separation of powers is well recognized as a general principle of constitutionalism, applicable to all constitutions and at all times [Barber, N.W., 2001, p. 59]. E. Barendt in his work "Separation of Powers and Constitutional Rule" (1995) wrote enthusiastically, that the task of the principle of separation of powers is to protect individual freedom, since separation of powers becomes an obstacle to tyranny and despotism on the part of the state [Barendt, E., 1995, pp. 605-606].

I believe that the abolition of the judicial function of the House of Lords and the establishment of Supreme Court in England under the Constitutional Reform Act 2005 are strong legal proof of the conclusions drawn. In this regard, N. Barber argued that the principle of separation of powers, "... which had previously been rejected and hardly discussed in the scien-

tific and legal spheres, has gradually taken its place in British studies on constitutional law. It is now perceived as a principle underpinning the Constitution..." [Barber, N., 2012, p. 17].

Under this theoretical approach, I.Yu. Bogdanovskaya's characteristic conclusion seems reasonable: "There are three stages in the evolution of the judicial precedent... The first stage of formation as a source of English law took several centuries (from XI to XIX century). The second: in XIX century, the principle of stare decisis finally established judicial precedent as a source of law. The third stage in the evolution of case law (since the second half of the twentieth century) is due to the development of statutory law and case law of interpretation" [Bogdanovskaya, I.Yu., 2012, p. 16]. Finally, I.Yu. Bogdanovskaya convincingly summarizes, "Judicial precedent, having played a historical role in the formation and development of legal systems of "common law", is gradually changing its position in the system of sources" [Bogdanovskaya, I.Yu., 2012, p. 26]. It seems necessary only to clarify the thesis of I.Yu. Bogdanovskaya "...is gradually changing its position in the system of sources". I think that, in theory, it is more accurate to draw another conclusion: the "judicial precedent of law" is gradually transformed into one of the types of wrong - the "position of the court", binding only on the parties to a given dispute, developed primarily in the process of consideration and resolution of individual disputes by the courts as a result of interpretation of the principles and rules of law.

Discussion and Conclusion

The above general scientific, philosophical, theoretical, legal and practical arguments allow us to draw several conclusions. I propose:

1. To treat as wrong the social regulators of public relations that have been developed for an indefinite or a definite number of their subjects, characterized by their optionality, non-compliance, lower degree of social connection and interdependence, rather than by "arbitrariness" and "separation" of subjects of public relations.

2. To classify two kinds of wrong. The first type of wrong is the social regulators of public relations formed between an indefinite number of their subjects, such as moral and religious norms, "soft" right, "quasi-right", etc.

The second type of wrong is the social regulators of public relations established between a fixed number of their constituents, in particular, individual contracts, individual judicial acts, "court positions", etc.

3. Not to integrate either the principles and rules of law, or the principles and rules of wrong, into a single system of law.

4. To distinguish legal regulators of legal relations, which are characterized by commitment, enforcement, greater degree of interconnection and interdependence, from social regulators of public relations.

5. According to the scientifically grounded concept of integrative law, only homogeneous social phenomena - above all the principles and norms

of law realized practised by the state and contained in single, multilevel and developing system of forms of national and international law - should be considered as law.

6. To consider, as the initial elements of the system of law, the principles of law - the fundamental regulators of legal relations, system-forming, expressing regularities and the generalization of the most typical to be, above all, the norms of law.

7. To differentiate between two types of "judicial lawmaking" - "moderate" and "radical". In essence, the "moderate" type of "judicial lawmaking" by numerous researchers (in particular, F. Geny) is limited, firstly, by its assumption of only being outside the law; secondly, by its results being obligatory only for the participants of this process, in each particular case -ex post.

8. It is in theory more reasonable to consider a "moderate" type of "judicial lawmaking" as one of the types of the wrong (unrecht) - "court positions" developed as a result of the court's interpretation of the principles and norms of law in the process of consideration and resolution of a particular case, which are binding only on the participants of the case - ex post.

9. To introduce the concept of "judicial wrong-making" instead of "judicial lawmaking".

10. To regard the "radical" kind of "judicial lawmaking", from general scientific and philosophical positions, as being debatable and counterproductive.

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Information about the author / Информация об авторе:

Valentin V. Ershov, Rector of Russian State University of Justice (69 No-vocheryomushkinskaya St., Moscow, 117418, Russia), Dr. Sci. (Law), Professor, Honored Lawyer of the Russian Federation, Honored Worker of Science of the Russian Federation, Academician of Russian Academy of Natural Sciences [Ершов Валентин Валентинович, ректор ФГБОУВО «Российский государственный университет правосудия» (117418, Россия, г. Москва, ул. Новочерёмушкинская, д. 69), доктор юридических наук, профессор, заслуженный юрист Российской Федерации, заслуженный деятель науки Российской Федерации, академик Российской академии естественных наук]. E-mail: evv@rsuj.ru