The Court Between the Application and Creation of Law Cover Image

Суд између примене и стварања права
The Court Between the Application and Creation of Law

Author(s): Gordana Stanković
Subject(s): Law, Constitution, Jurisprudence, Court case
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Separation of powers; Legislative and court authority; Application of law; Interpretation of law; Unification of court practice;
Summary/Abstract: In this paper, author analyzes the relationship between legislative and court authority according to the principle of separation of powers and the roles of the court in providing civil legal protection. While performing its judicial function, the court is obliged to act according to the procedural rules set out by the legislative authorities and to make decisions according to the rules of substantive law. Although the separation of powers implies that the court cannot create general legal norms instead of legislator, it takes the role of a kind of sub-legislator in situations when it interprets the law more closely, fills the legal gaps, interprets legal standards, and assesses concrete situations using its own criteria. The principle of separation of powers does not prevent the judge from using interpretation to, in effect, create a new law that differs from the one made by the legislator. Furthermore, it does not prevent the judge from modifying the existing rules or paralyzing the legislator's will, or even violating the law by rising above the legislators' authority, even though abuse of authority occurred. Interpretation of law as a precondition and during its application causes two problems: the correctness and the uniformity of interpretation for the sake of equality before the law and legal certainty. The legislator tries to solve the problem of the correctness of interpretation not only through the possibility of an authentic interpretation of the law but also through certain instruments in organizational and procedural law. The problem of uniformity in the interpretation of the law is solved within a judicial system in the domain of uniformity of court practice regarding legal remedies, in the procedure for resolving contentious legal issues in civil proceedings, and by the activity of courts in taking legal views.

  • Page Range: 1-15
  • Page Count: 15
  • Publication Year: 2023
  • Language: Serbian
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