Свобода толкования у конституционного судьи

Российский ежегодник теории права. 2011. Т. 4. С. 184–195.

Тропер М.

Translator: Antonov M.

In this article Michel Troper discusses the extent to which constitutional judges are free in their activity of interpreting laws. Three different approaches to legal interpretation yield different results in explaining liberty of interpretation. Interpretation as cognition is rejected by the author who reveals a vicious circle in the reasoning of partisans of this theory. A special emphasis is made on the efficacy theory proposed by G. Vedel which is fruitless from the theoretical standpoint, as efficacy of an act of interpretation for sustaining the existing legal order does not establish veracity of the propositions made through this act. Troper defends the theory of interpretation as act of will, pursuing his analysis in the field of constitutional justice. He examines the thesis that the judges are bound by law in their interpretation of laws, and argues that this thesis is psychological and not normative. The conclusion made by the author is that constitutional judges have full discretion in interpreting laws, but they avoid using their discretional powers with regard to practical reasons such as sustaining of legitimacy of judicial power and keeping influence on legislative process.

Keywords: legal realism, судейское усмотрение, правовой реализм, толкование права, judicial discretion implementation of law, legal interpretation