Martynenko A. Theoretical basics of judicial law-making in the concept of legal pragmatism

The thesis devoted to the place and role of judicial law-making in the legal pragmatism concept. This work is the first scientific research of judicial law-making in Ukraine through the legal pragmatism concept. The author analyzes the constants of classical pragmatism philosophy which is represented by Charles Sanders Pierce, William James and John Dewey, as the philosophical and methodological source of legal pragmatism concept. Neo-pragmatic theory of Richard Rorty and hermeneutical approach to pragmatism of J?rgen Habermas are also identified as philosophical basis of legal pragmatism. According to the analysis of the distinctive features, judicial law-making is defined as the court activity during the litigation (due to the necessity of overcoming gaps in the statutes or lack of relevant case law, or the necessity to concretize the existing legal rules, or the necessity of its overcoming), the result of which becomes legal rule (including that which modifies or denies an existing rule) or legal principle formalized in the reasoning of the court decision which binds courts in considering similar cases. The author investigates the methodological features of the judicial law-making research through the legal pragmatism concept. The guiding principles for the researching problems of the judge-made law are identified. Special attention paid to the pragmatic determinants which accompany the research of judicial law-making. The works of O. W. Holmes, Jr. are reviewed as the first pragmatic approach to law in legal science history. O. W. Holmes recognized and justified the essence of the judge's broad authority to make law, so judicial law-making takes a special place in his concept. The basic postulates of O. W. Holmes' pragmatic jurisprudence are: realizing law in terms of "bad man" as the predicting of legal sanctions and consequences of a human behavior; rejection of moral phraseology; rejection of considering law as the product of logic; the necessity of considering social issues, economic benefits and historic development in dispute resolution by judge. The role of judicial law-making in sociological jurisprudence of Roscoe Pound is also analyzed. The author posits that the R. Pound's appeal to the practical action of law, not its static fixing in legal acts or doctrines, makes the strong foundation of the theory of judicial law-making and achievement of R. Pound's sociological jurisprudence for judicial activism is obvious. The author analyzes legal realism theory as influential course of the legal pragmatism concept. Special attention paid to the works of Benjamin N. Cardozo who formulated well-structured methodology that can guides judge in finding legal regulations basis or in making new legal rules using the judicial law-making. The legal realism theory is divided into a radical wing (represented by Jerome Frank) and a sociological wing (represented by Karl Llewellyn). The author postulates that the sociological wing of legal realism is more viable concept versus radical wing because it does not reject the possibility of existing statute or case law rule be the basis for making judgments when existing rules are adequate.