Judges as Partners of Legislators or Some Theoretical Aspects of the Role of the Judge in Interpreting Law

Abstract

The article deals with some possible approaches to the role of the judge in interpreting law. It is discussed, what are the main features, examples and problems of these approaches. The article offers conclusions, arguing that the positivistic model of the role of the judge in interpreting law, according to which judges are considered to be interpreters of law established exclusively by legislature, is insufficient in the activity of interpreting law performed by courts. This insufficiency is caused by the indeterminacy of rules of text interpretation, limitation of the establisher of legal text, imperfection of the legislature process, judges’ obligation to take into account changing public relations as well as requirements to make a court decision, corresponding with justice, rationality, honesty and proportionality. Judges should be inevitably accepted as partners of legislators, protectors and guarantees of law-protected values, creatively attributing to the formulation of the law content to a certain extent, so the most acceptable model of the role of the judge in interpreting law is the acceptance of judges’ power to make use of thoughtful disquisition of legal text. Thoughtful disquisition of legal text, integrating different kinds of this interpretation (interpretation of law, based on principles of law, law-protected values and aims of legal regulation), provides a possibility of solving the insufficiency of the positivistic model of the role of the judge in interpreting law, herewith ensuring a definite and predictable result of judges‘ interpretation of law.