THE EVOLUTION OF JUDICIAL INTERPRETATIVE ACTIVITY: AN ANALYSIS OF THE MAIN THEORIES IN CONSTITUTIONAL LAW

Abstract

The article examines the evolution of judicial interpretation in constitutional law through three main theories: the theory of discovery, the theory of creation, and the theory of creation in problem areas. These theories characterise the methodological foundations of legal interpretation, revealing the role of judicial activity in the interpretation of legal norms. The theory of discovery asserts that legal norms possess an objective meaning and that the court's task is to find and publicise them. The theory of creation indicates that a legal norm lacks an inherent meaning and must be formed through court interpretation. The theory of creation in problem areas emphasises the role of courts in filling legal gaps, bridging the divide between these two approaches.

The theory of discovery posits that legal norms possess an objective and predetermined meaning. According to this theory, the judge's role is merely to identify and articulate this meaning through interpretation, leaving no room for legal creativity. The theory of discovery aims to ensure legal stability and introduce objectivity into judicial decisions.

In contrast, the theory of creation fundamentally differs from this perspective by granting judges the right to adopt a creative role. In this theory, interpretation is viewed not merely as a means of uncovering the content of a norm but also as a mechanism for forming new legal norms. Particularly in situations of legal gaps, the active role of judges becomes especially significant, as they create new norms to fill voids in the legal system.

The theory of creation in problematic areas occupies an intermediary position between two approaches. It asserts that judges formulate new norms only when positive law does not provide a clear and precise answer. This approach aims to ensure the flexibility of the legal system and the sufficiency of legal regulation, while also seeking to restrict the creative role of judges to necessary bounds.