Tworzenie a stanowienie i stosowanie prawa

Abstract

Even in the continental legal systems the process of law-making and that of applying the law are difficult to distinguish in certain border cases. This results i.a. in numerous discussions as to the "law-making" role or function of court judgments. This article attempts at explaining in what situations rules of legal construction (rules of interpretation and rules of inference) which are permissible in a "rule of law" state, allow to introduce certain creative elements into the process of exegesis of t he enacted legal provisions; a condition that would justify attributing a law-making nature to the acts of applying the law. Some particularly significant problems are connected with the radical changes of the ideological assumptions accepted as the basis for the construction of some older legal texts.