Onyshchuk I. I.

The scientific-practical Law Journal
“Almanac of Law” Volume 14 (2023), 75-80 p.

DOI: 10.33663/2524-017X-2023-14-75-80

Onyshchuk I. I. The Impact of Judicial Practice on Legislative Transformation: the Law-Making Role of Constitutional Control of the US Supreme Court

The purpose of the article consists in the characteristics of the constitutional control of the US Supreme Court as a form of judicial law-making from the point of view of general scientific, philosophical, theoretical-legal and practical positions. The novelty of the article consists in characterizing the law-making role of judicial practice of the Anglo-Saxon legal system and its comparison with the development of judicial practice in the Romano-Germanic legal system. It was found out that the mechanism of judicial law-making was formed in the USA under the influence of the rule of precedent inherited from English practice – stare decisis. And this led to court decisions becoming the most important source of law. It is argued that the American model of judicial constitutional control, the elements of which are borrowed and used in some European countries, is effective in conditions where proper interaction between specialized bodies (for example, the constitutional court) and courts of general jurisdiction is not established. It is shown that, according to the American model, the review of constitutional issues is carried out decentralized (by all courts), and according to the European model, it is centralized (by the body of constitutional control).

Constitutional control in the USA is not limited to negative law-making. The task of the Court is to ensure the supremacy and direct effect of the Constitution on the entire territory of the state and in relation to all subjects of law. That is why constitutional control also includes positive law-making, which results from the interpretation of legislative norms or the encouragement of legislatures to create new norms. However, this does not mean at all that the judicial power encroaches on the functions of the legislator or somehow puts him in a dependent position. In the USA, the Constitution’s precept, according to which the branches of government must be separated from each other, remains inviolable. But at the same time, their interconnection and interaction is not denied.

The author came to the conclusion that one of the directions of judicial control, which shows the formal side of law-making, is its implementation in “negative” and “positive” form. At the same time, the Supreme Court of the United States, canceling any law in full or in a certain part, i.e. actually carrying out “negative law-making”, creates the prerequisites for the creation of a new rule of law, which should fill the gap. Constitutional control in the USA is a form of law-making activity of the Supreme Court of the USA with the aim of protecting the foundations of the constitutional system, the basic rights and freedoms of a person and a citizen, ensuring the supremacy and direct effect of the Constitution, as well as preventing the emergence of unconstitutional acts in the legal system.

Key words: legal system, law-making process, judicial practice, constitutionalism, supremacy of the Constitution, stare decisis.


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