The nature and limits of judicial law-making

The article is devoted to the study of a fundamental problem of jurisprudence – the correlation between judicial interpretation and judicial law-making. The relevance of the topic is driven by the necessity to rethink the role of the judge amid the transformation of the national legal system associated with its integration into the European legal space. Through the lens of the transition from the classical positivist paradigm to the doctrine of the rule of law, the role of the court in creating legal reality is explored. The necessity of a shift from a narrow understanding of the court’s role exclusively as the «mouth of the law» (la bouche de la loi) in favor of a model of an active subject of interpretation is substantiated. The thesis is elaborated that judicial interpretation serves as a mechanism for adapting the law to changing social demands. It is proven that judicial interpretation acts not only as a technical means of clarifying the content of a norm but also as an instrument for overcoming legal uncertainty. It is proposed to view this process as a dynamic «discovery» of law, ensuring the stability of the legal system while maintaining its flexibility. The article analyzes existing approaches in legal doctrine to the interpretation of the phenomenon of judicial law-making, which arises at the junction of filling legislative gaps, overcoming conflicts of laws, and resolving exceptional legal problems. Based on the analysis of scholarly approaches, potential risks of excessive judicial law-making and its impact on legal certainty are identified. The dualistic nature of the legal positions of the Supreme Court is revealed, which, despite the lack of official recognition of judicial precedent, are effectively characterized by signs of «soft normativity.» It is established that the legal positions of higher judicial instances do not merely clarify the content of the law but also supplement it, revealing and forming additional stable algorithms of law enforcement. It is argued that the boundary between interpretation and law-making should be determined by the limits of legal certainty, the principle of «judicial restraint,» and the unconditional priority of protecting human rights over the formal legislative text. The vision of judicial law-making is substantiated as an exceptional property of justice, arising when ensuring fundamental human rights and equity outweighs the requirements of the principle of separation of powers. The study was conducted using the methods of philosophical hermeneutics, systemic-structural analysis, and the comparative legal method, which allowed for the analysis of judicial interpretation as a multi-level process. The scientific novelty of the study lies in the combination of the theoretical foundations of legal hermeneutics and the analysis of the current procedural practice of higher judicial instances.