THE ROLE AND PLACE OF JUDICIAL LAWMAKING IN THE IMPLEMENTATION OF THE PRINCIPLE OF SEPARATION OF POWERS

Since the emergence of the state, the greatest minds of humanity have sought to find the most optimal balance between the need for social regulation, the power ambitions of the state apparatus, and the possibility of free development of society. Theologians, philosophers, and scholars have grappled with one of the most complex questions of social existence: how to reconcile the nature of state power with the need for individual freedom. A peculiar response to this question was the creation of several scientific concepts, later united into a single doctrine known as the "Theory of the Separation of Powers." This theory gradually evolved and transformed into a kind of imperative of modern statehood.

The separation of powers in Kazakhstan was first recognized and proclaimed in the "Declaration on State Sovereignty" of October 25, 1990. Provisions on the separation of powers are also contained in the Constitutional Law "On the State Independence of the Republic of Kazakhstan" of December 16, 1991, and the Constitution of the Republic of Kazakhstan (RK) of January 28, 1993. The current Constitution of Kazakhstan, adopted on August 30, 1995, enshrines the separation of powers in the following provision: "State power in the Republic is unified, exercised based on the Constitution and laws in accordance with the principle of its division into legislative, executive, and judicial branches, and their interaction with each other using a system of checks and balances" (Article 3, paragraph 4, Constitution of the RK) the existence of the USSR, the principle of separation of powers was generally viewed critically and rejected as a bourgeois concept. Its alternative, or rather its opposite, was the proclamation of the omnipotence of the councils as the "truly democratic" institution of the Soviet state, meant to express and protect the interests of the working class. However, even the councils did not have real power. In reality, power was concentrated in the hands of the Communist Party.

The independence of the judiciary as a whole and of judges in particular was out of the question, as there were no separate, independent branches of government. The overwhelming majority of judges were members of the Communist Party, and their terms were limited. The process of election, or rather the appointment of judges, was designed to restrict their independence and autonomy. The constitutional declaration of that time that "judges are independent and subject only to the law" unofficially sounded like this: "Judges are independent and subject only to the district committee".

Since the declaration of Kazakhstan"s state sovereignty, the country has embarked on the path of building a truly independent and autonomous judiciary, capable of protecting the rights and freedoms of citizens and holding other branches of government within the bounds of the law. The judiciary, like the other branches of government, is also limited by the law and bases its activities on the norms established by other branches of government and the Constitution of the Republic of Kazakhstan. According to Article 77, paragraph 1 of the Constitution of the Republic of Kazakhstan, a judge is independent when administering justice and is subordinate only to the Constitution and the law. However, the subordination of the judiciary and the division of powers into legislative, executive, and judicial branches do not mean that courts are completely excluded from any possibility of lawmaking.

An alternative position on this issue, if logically consistent, would argue that the only source of law in the context of the separation of powers can be acts of the legislative branch. Both judicial and executive acts would not be considered sources of law. Meanwhile, the strict separation of powers between the legislative and executive branches does not exclude lawmaking activities by the executive branch, based on and in execution of the law. There is no reason to dispute the lawmaking powers of the executive branch as such, and the discussion could only concern the nature of these powers and the place of executive acts in the system of sources of law.

However, in this case, the position of V.S. Nersesyan, who does not dispute the lawmaking of the executive branch based on the separation of powers, but denies judicial lawmaking for the same reasons, seems illogical【3; 34-41】. Moreover, this position is simply refuted by the fact that in common law countries, under the separation of powers, judicial precedent is a source of law and was previously considered the primary source of law.

In this matter, the opinion that judicial precedent is not recognized as a source of law in countries with European continental law does not fundamentally change the situation. Even if the prevailing doctrine in continental law did not recognize precedent as a source of law, and even if it truly were not considered as such, the essence of the separation of powers cannot change depending on "legal geography." If, in common law countries, the separation of powers does not prevent the lawmaking activity of higher courts, then in countries with continental law, the separation of powers cannot prevent the lawmaking function of the judiciary.

V.S. Nersesyants, relying on the principle of the separation of powers, argues against recognizing judicial practice as a source of law. He maintains that the court is solely engaged in the application of the law, not lawmaking. In his view, when legislation is defective or when a case is complex or atypical, the court only performs a legal (anti-legalistic) interpretation of the law from the perspective of the law itself【3; 34-41】.

Given the modern tendency among jurists worldwide to rely on the law, the creative role of judicial practice is always or almost always hidden behind the appearance of legal interpretation【4; 97】. V.S. Nersesyants" reference to general principles of law does not change anything in this matter. Legislative and executive branches, just as the judiciary, also consider and must consider the general objective principles of law in their activities. From this, it does not follow that Parliament only interprets the Constitution from the perspective of the law, or that executive bodies only interpret laws using the same general principles of law. Moreover, the very concepts of justice, formal equality, and freedom, as interpreted by V.S. Nersesyants in the content of law, inherently assume a certain creative role for the court in specific legal activities. These concepts go through the legal consciousness of the individual judge, who is a representative and bearer of a particular legal culture.

This does not mean that these principles of law can change depending on the judge’s legal consciousness and culture. Simply put, objective principles of law cannot be directly embodied in life. They are always realized through specific subjects in specific socio-economic, cultural, political, and other conditions of life in a particular society and state. If these general objective principles of law had to have a strictly defined, specific embodiment everywhere, the legislation of countries, in general, would have to be identical. But as we can see, this is not the case anywhere. Thus, while the principles of law do not change in their essence, they can be interpreted differently in relation to the prevailing law of each country. This interpretation of objective principles of law must be conditioned by equally objective conditions in a particular society and state. This reflection is expressed not only in legislation but also in justice. It is justice that "triggers" the mechanism for protecting legal values – authentic law becomes an effective regulator of public relations. As S.S. Alekseev precisely noted, in the end, it is only independent and strong justice that is capable of making the law a sovereign and social institution, regardless of the discretion and arbitrariness of government authority, including the discretion, and at times the arbitrariness, expressed in legislative and other normative legal documents【5】.

The most significant aspect of all law enforcement practices is the judicial system, as unlike in the Soviet era, today any decision, action, or inaction of a public official can be challenged in court. Even legal acts that infringe upon the rights and legitimate interests of citizens and organizations can be appealed. It is in court, when resolving specific cases and disputes, that the most thorough examination of the law takes place, in terms of its flaws, its reflection of societal needs, fairness, reasonableness, and compliance with fundamental human rights and freedoms.

The court is a crucial element in the law-creating mechanism, its testing and alignment with the primary source of law – real life and real relationships. The court is the creator of living law, specifying its application to individual life situations, achieving a precise and specific meaning of legal norms, determining the individual measure of freedom, justice, and balancing the proportions and harmony of general provisions of normative legal acts and other sources of law (such as customary law), as well as the rights, freedoms, and duties of the participants in legal relations【6】.

The court is not a representative body, and certainly not a legislator. Among all branches of government, the judiciary is the weakest: it does not rely on the will of the voters, like the legislative branch, and does not have coercive power like the executive. However, the strength of the judiciary lies in the respect of civilized society for the law and for the court as its professional interpreter and just implementer【7; 644】.

It is important to note that the powers of the legislator arise from the law. It is the law that grants the legislator the ability, in certain cases, to exercise force, and it is also the law that grants the executive the authority to make regulatory decisions in some cases. The judicial branch also relies on the law; as A. Barak states, it has nothing except what the law gives it. This is the principle of the rule of law. Hence, judicial lawmaking must be based on law and must operate within its limits【8】.

The judicial authority, relying on the entire array of existing legal norms, resolves current cases and disputes based on them, while performing both abstract and specific norm control. The task of the court is further complicated by the fact that legislation does not and cannot provide ready answers to all the questions arising in the course of resolving socio-legal conflicts in the endlessly diverse public practice. This is the basis for the right of each court to engage in case-by-case interpretation of the applicable legal norms and the resulting judicial discretion.

For example, Y.V. Gracheva identifies the following reasons that give rise to judicial discretion in criminal law:

The dynamic nature of the conditions of modern society, which complicates the creation of legal norms that remain in effect unchanged for long periods;

The infinite variety of life phenomena and the individuality of some of them, which often do not allow legislators to regulate them by adopting absolutely defined (absolutely formalized) criminal law norms;

Defects in legislative technique (a legislator may not have intended to grant discretion to the legal practitioner when creating a norm, but due to vagueness, complexity, or lack of clarity, the norm forces the practitioner to introduce discretion into their activity);

The impracticality, in some cases, of formulating absolutely defined norms in the law【9; 9】. As an example, Gracheva mentions the establishment of relatively defined sanctions in criminal codes.

Thus, judicial discretion is based on two contradictions. The first contradiction is related to various conflicts within the system of existing positive law itself. The second contradiction arises between positive law and social reality. Existing positive law is fundamentally incapable of being fully adequate to the dynamically developing and infinitely diverse social practice. However, such a contradiction serves as a powerful impetus for the development of law. And the first institution that must perceive, assess, and respond to this contradiction is the court, as an independent public institution of state power, tasked with protecting the rights and freedoms of citizens, resolving various socio-legal conflicts in society through legal means.

Judicial discretion has certain limits. O.A. Papkova identifies the following criteria for limiting judicial discretion: 1) legal prescriptions, 2) rules for interpreting legal norms, 3) specific circumstances of the case, 4) principles of expediency, 5) the concept of justice【10; 8】. Legal prescriptions serve as the first, but by no means the only, criterion for limiting judicial discretion. A court cannot be absolutely bound by the law because the independence and autonomy of the judicial branch allow it to interpret the law based on legal, particularly constitutional principles, on which justice is built【11; 18】.

Such an understanding of the role of justice and the court in the life of Soviet society and the state was unacceptable. In Soviet legal science and practice, the prevailing understanding of legality was the strict and unwavering implementation of laws and sublegislative normative acts by all subjects of Soviet law—state organs, public organizations, officials, and citizens【12; 506】.

The modern understanding of legality is fundamentally different from the interpretations of the Soviet period. The core of general legality is constitutional legality. For example, paragraph 2 of Article 12 of the Constitution of the Republic of Kazakhstan states that the rights and freedoms of an individual belong to everyone from birth, are absolute and inalienable, and determine the content and application of laws and other normative legal acts. This provision directs all law enforcement bodies to interpret and apply normative acts in a way that responds not to departmental interests, but to the constitutional rights and freedoms of specific individuals. The court plays a special role and has corresponding powers in this matter. According to Article 78 of the Constitution of the Republic of Kazakhstan, if the court finds that a law or other normative legal act to be applied infringes on the rights and freedoms of citizens enshrined in the Constitution, it is obliged to suspend the proceedings and refer the matter to the Constitutional Council with a request to recognize the act as unconstitutional.

In cases of violation of general legality by a normative act, the court has even greater powers. According to paragraph 4 of Article 6 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC RK), when the court finds that an act of a state authority is inconsistent with the law or has been issued with exceeding authority, it applies legal acts that have greater legal force【13】. Additionally, upon the request of a citizen or legal entity, a normative legal act that violates their rights and legal interests may be recognized by the court as invalid in whole or in part, in the manner established in Chapter 28 of the CPC RK.

Thus, the establishment of constitutional and general legality in the Republic largely depends on the court’s activity in interpreting and applying the norms of current law. The court is the one that gives concrete content to the abstract understanding of legality based on the resolution of various cases and disputes. The change in the role of the court in this sense, compared to the Soviet period, has two aspects. First, the court’s powers in strengthening unified legality have qualitatively and quantitatively increased (for example, the introduction of both abstract and specific norm control). Second, the court is now called upon to protect not the interests of a specific class or party, but the interests of law as an independent value, which includes justice, freedom, formal equality, the priority of human rights, etc.

It is not only the legislature but also the court that can express and affirm the existence of law in Kazakhstani society and the state. However, each does so within the scope of its own responsibilities, without assuming the competence of others.

If we consider that legal regulation is arbitrarily carried out by the supreme authority, then the only source of law should be the laws approved by this authority, and the courts must unquestioningly obey any changes in legislative policy. However, if we agree that legal regulation is not arbitrary power and that legal legislation is subject to fundamental legal principles, then there is no reason to claim that only the legislature can properly express these principles【11; 18.

The separation of powers does not mean dividing state bodies into lawmaking and non-lawmaking bodies. Legislative, executive, and judicial state bodies participate in various forms of lawmaking, while controlling, restraining, and complementing each other【7】. The impact of different powers on society is heterogeneous; it has its essential, objective properties, which give each branch of power distinctive features. However, it is "impossible to completely separate them, because we are dealing with a unified institution, a single state power. There cannot be several different kinds of state powers in the state"【14; 139】. Furthermore, they all have the same object of impact – society, and the method of impact is legal.

If we keep in mind that each branch of power is realized in the same organizational and legal forms (through lawmaking, interpretation, based on positive law enforcement, and law enforcement activities), only then can we understand how the mechanism of interaction, competition, and "mutual restraint" of powers works. Specifically, it operates through corresponding organizational and legal forms of their realization【15】. Lawmaking, as an organizational and legal form of exercising the functions of a particular branch of power, is often implemented in parallel, but only within the limits and in the context of the strategic goals of the relevant branch of power. This gives the organizational and legal forms of state functions corresponding to different powers a specific color, and each branch of power, in the aggregate of its organizational and legal forms, an effect of separation.

What is the specificity of judicial lawmaking, distinguishing it from the lawmaking activities of the legislative and executive branches of power?

Firstly, it should be noted that judicial bodies do not have a specific, clearly defined sphere of normative-legal regulation. This is because the judiciary does not extend to a strictly limited circle of public relations but covers any legal relationships (with some exceptions, such as cases and disputes referred to the competence of the Constitutional Council of the Republic of Kazakhstan, among others), including those not regulated by the norms of existing law.

Secondly, judicial lawmaking is closely linked to judicial discretion, which refers to the judge"s ability to choose between two or more lawful alternatives. According to E.V. Semyanov, this connection lies in the fact that "judicial lawmaking is initiated through judicial discretion, the result of which is a new interpretation of existing legal norms, which may later acquire universal significance. At the heart of judicial lawmaking lies the objective nature of judicial discretion, conditioned by a number of reasons, including gaps in the law and legal practice. Furthermore, the prerequisite for judicial discretion, its "normative-legal basis," is the hypothesis of a legal norm, depending on the degree of clarity of its content, which determines the scope of the judge"s freedom in establishing the facts and the meaning of the legal norm"【16; 6-7】.

Legislative discretion is the result of explicitly established lawmaking competence. Judicial lawmaking, on the other hand, is largely derived from the necessity and permissibility of judicial discretion.

Thirdly, judicial lawmaking is not political in nature. This apoliticality has two aspects. The first is that the judiciary is independent of political parties and movements. Their unimplemented programs in legislation do not (and should not) hold any weight for the court. As already mentioned, the court defends the interests of the law as an independent value and should not be subject to transient political changes. Only when the programmatic slogans of the party that wins the elections are enshrined in the legislation can they serve as the basis for resolving judicial cases and disputes. The court must take into account political considerations that can be derived from logic, public trust, or the law, while adhering to the separation of powers and refraining from applying considerations of economic and social policy, which are usually the prerogative of the parliament【17; 125】.

The second aspect of the apolitical nature of judicial lawmaking is that the court always deals with relationships that already exist in reality, with established facts and circumstances. Unlike parliamentary lawmaking, which is oriented towards the future, the court is always bound by past cases. Judicial lawmaking can only adequately reflect social realities, while the legislator not only reflects them but also organizes, directs, and regulates their development, stimulating and fostering the formation of new relationships. These and other specific characteristics of parliamentary and judicial lawmaking reveal the different sides and levels of their state-legal impact on social relations.

Fourthly, the manifestation of judicial lawmaking is not connected with the initiative of the court itself, but with requests from interested parties who are waiting for a lawful and reasoned resolution of a particular case. Thus, the court is deprived of the ability to independently select the subject of legal regulation. Due to this characteristic of judicial lawmaking, V.I. Anishina points out that "a directive acquiring precedential character has its cause not from the judge"s own initiative, as a legislator adopts normative acts, but arises from specific existing legal relationships. That is, its nature originates from the need for legal regulation stemming from concrete, life-determined circumstances, rather than from a theoretically justified need for the regulation of certain legal relations. In this respect, such regulation has one indisputable advantage over legislative regulation: it is timely and prevents a social conflict from remaining unresolved while waiting for the legislature to adopt the relevant norms; it is flexible because it allows the real circumstances of each particular case to be taken into account, whereas the legislator"s provisions may not be a just and acceptable way to resolve the conflict in specific cases"【18.

Fifthly, judicial lawmaking is subsidiary and compensatory in nature. The judiciary does not have its own clearly defined sphere of normative-legal regulation. However, the executive branch issues normative acts when the need for them is directly indicated by law or in accordance with a general provision defining the scope of the body"s competence as a whole. Judicial lawmaking, as a rule, is not planned in advance. It gains legitimacy not because it is provided for by someone"s subjective will, but because it is called into existence by objective reality. Judicial lawmaking usually takes place where there are gaps, conflicts, or other defects in the already existing normative-legal material that is to be applied. If consistent legislation adequately reflects the need for legal resolution of a particular disputed case, there is no need for judicial lawmaking. It occurs only when it is necessary to go beyond the normative boundaries of the existing positive law. According to O.N. Vasilenko, expansive interpretation, analogy (especially analogy of law), judicial discretion, and the direct application of the general provisions and principles of the constitution are methods and forms of courts stepping beyond the boundaries of positive law and formulating what is known as "living law"【19; 25】.

Judicial lawmaking is not strictly subordinated nor equally valid as the lawmaking of other branches of government. Subsidiarity here does not imply supplementing laws or subordinate acts. Judicial practice as a source of law can only compensate for the defects in the normative acts of the legislative and executive branches, and it supplements the existing law as a whole, constituting a relatively independent segment of it.

Such a compensatory role of judicial lawmaking does not mean that it can be entirely excluded by improving the quality of laws and subordinate normative acts. This can significantly reduce the need for and thus the prevalence and scope of judicial lawmaking, but it cannot be completely avoided. This is due to many reasons. Let us highlight the main ones: 1) the dynamic and changing nature of social relations; 2) the language of the law; 3) the multifunctionality of legal practice, particularly judicial practice.

Sixth, another criterion for distinguishing judicial lawmaking from parliamentary lawmaking is the breadth and depth of legal regulation coverage. These and other criteria will assist in resolving the task of differentiating, defining the roles of the court and parliament in providing adequate legal regulation for all areas of societal life that require it.

It is widely recognized and objectively determined that the norms in the Romano-Germanic legal system are more general in nature compared to the norms in Anglo-Saxon law countries. For English courts, statutory norms are seen more as general principles rather than rules that can be directly applied to resolve specific cases and disputes. R. David emphasized that, according to the traditional English concept, the law was not considered the normal form of expressing rights. Judges, of course, always applied the law, but the norms it contained were definitively incorporated into the national legal system only after being repeatedly applied and interpreted by the courts to the extent and degree set by them【20; 134】.

Modern legislation is characterized by the existence of so-called framework norms (general provisions), which only broadly provide for the regulation of a particular issue. Therefore, there arises a need for the judiciary to create more specific norms, which represent both judicial discretion and judicial lawmaking as a whole. This has led scholars to speak of a kind of "delegation" of normative power from the legislator to the judiciary【21; 19】.

Judicial lawmaking represents a certain level of legal specification, bringing the law closer to the needs of legal regulation in specific life situations. In general, the general and abstract nature of legislative norms, especially the use of so-called "evaluative concepts," inherently implies their specification during legal application activities. The legislator, in turn, creates rules not in a vacuum. Laws largely represent a specification of constitutional provisions. The executive branch issues subordinate normative acts based on and to enforce legislative acts, thus developing and specifying them. The final act in this chain of specification is the court"s act. This is because only the court has the authority to amend or annul its own decisions, and only at the request of interested parties, not on its own initiative.

Unlike the court, the legislator only conducts induction, searching for widely accepted rules—"law in general, for all cases in life." However, the legislator does not have unlimited foresight and cannot determine the infinite. It is known that induction in itself does not provide reliable knowledge, and therefore, lawmaking alone cannot solve the problem of adequate legal regulation【5】.

A.I. Boytsov, considering the advantages of judicial precedent, notes that "in many respects, judges are better creators of law than legislators. While legislators decide thousands of cases at once, in bulk, without special discussion of each case individually, using only general ideas and considerations, judges, step by step, draw their material from life and create for life. Experienced in the practical application of law, judges, first of all, are sufficiently competent specialists, their arbitrariness being much more limited by law, as well as by the functioning of appellate and supervisory instances, and secondly, they make their decisions after discussing each question in the cross-light of the adversarial process" [22]. G.V. Demchenko also pointed out that "we cannot demand from a general law that which it is unable to provide: we cannot demand that it encompass the entire legal life of society in all its minute details, that it be able to track the living diversity and eternal variability of moving activity. Providing general guidance, setting necessary limits to judicial activity, and indicating its paths and means of action—that is what the legislator is capable of" [23; 53].

Each branch of power is capable of and should determine what constitutes law at its level within the framework of its own tasks, sometimes compensating for the lack or other defects of the law at another level. However, such compensation must strictly occur within the tasks of the compensating branch’s competence, and not for any other reasons. On the other hand, if any branch of power were to have the right to independently determine, based on its own will, what constitutes law concerning the implementation of the tasks and competencies of other branches of power, then this is where the threat to the principle of the separation of powers lies.

Law is shaped not only by all three branches of government but also by society. Even the state as a whole is not a monopoly in lawmaking. Law is an essential component of society as a self-organizing and self-regulating system [6]. Society can express what constitutes law, but it is only state institutions (with the exception of a referendum) that legalize this law, give it the qualities of formal certainty, normativity, and formulate it in its final form. One of these institutions is the judiciary.

When formulating a legal norm, the legislator must reflect in it the most significant social relations that exist in society. The source of a legal norm cannot solely be the will of the legislator. Lawmaking bodies base their activities on the objectively developing social relations [24; 3].

The court acts as a kind of buffer, a place where legal information is concentrated and processed, moving both from the state to society and from society to the state. When legal information moves from the state to society, the court adapts it to the needs of resolving various socio-legal conflicts, concretizes this information into the subjective rights and duties of the participants in the judicial process. According to E.V. Bogmatser, the process of law formation does not end with the publication and entry into force of legal acts. In his view, the final formation of a legal norm occurs after its socialization, its adaptation by public consciousness, and its realization in the behavior of participants in social communication [24; 11].

When the legal information moves in the opposite direction, from society to the state, judicial practice may anticipate new legislative provisions, as the courts are the first to identify and develop new or unresolved legal issues, which the legislative power may later formalize in the form of legal provisions.

The rejection of socialist ideology brings the task of creating a legal mechanism that responds to the objective patterns of societal functioning, ensuring the creation of a self-developing and self-regulating system of civil society. Accordingly, the law must meet these requirements: it must "sensitively" respond to the needs of public life, reject defective, subjective norms, and update appropriately. F.U. Maitland aptly characterized these qualities of law, noting that legal institutions resemble living beings. Some are stillborn, others are infertile from birth, and others survive long enough to witness the high position of their children and their grandchildren. Among them, there is a fierce struggle for life, and only the most adaptable survive [25; 30]. It seems that the combination of various forms of law within one legal system, including normative-legal documents and acts of judicial bodies, can ensure these qualities.

According to Article 1, Part 1 of the current Constitution, the Republic of Kazakhstan establishes itself as a democratic, secular, legal, and social state, with the highest values being the person, their life, rights, and freedoms. Developed forms of statehood (the rule of law) maximally ensure legal freedom. Therefore, the structural and functional principle of the state mechanism can only be a legal principle – the principle of maximum provision of legal freedom. If the principle of the separation of powers is recognized as such, its meaning is not just the rational organization of the apparatus of state power, but one that allows for the proper and maximum protection of individuals" freedom and their associations by public political power.

In a system of separation of powers, which corresponds to a developed legal situation, no branch—whether legislative, judicial, or executive—has a monopoly on determining what constitutes law in relation to specific relationships. However, each branch must ensure legal freedom within the scope of its tasks and the competence of the corresponding bodies. In particular, the court cannot create laws, but it can declare laws as infringing upon rights and must interpret them in a way that most closely aligns with the principles of legal freedom [11; 18]. The court should not substitute the legislator by detaching its "jurisprudence" from the objectives of justice. Likewise, the legislator cannot force the independent judiciary to adopt an anti-legal position that contradicts constitutional provisions. The judiciary gains real authority when it obtains the power to review the legal content of all normative legal acts issued not only by executive authorities but also by legislative bodies. This grants the judiciary a real opportunity to demonstrate the system of checks and balances in practice [26; 200].

Judicial lawmaking, according to S.V. Lozovskaya, is an element of the system of checks and balances [27; 9]. This role of judicial lawmaking is explained by the very purpose of the judiciary, which carries out both abstract and concrete norm control in the course of administering justice. Yu.A. Dmitriev and G.G. Cheremnykh even note that the judiciary as a whole "is part of the so-called system of checks and balances, a means of resolving disputes between the branches of government" [28; 49].

In our view, judicial lawmaking is a check designed to keep the activities of other branches of power within the framework of the constitution and law. Counterbalances are more political in nature than checks, and they are methods of opposing one branch of government against another to defend its powers and interests. Their use is primarily limited to the interaction between the executive and legislative branches (for example, the Parliament of the Republic of Kazakhstan has the right to reject the government"s program). In contrast to the other branches, the judiciary does not (and should not) have political interests; it is tasked only with defending the interests of the law.

Considering the decentralization of lawmaking activity, G.B. Yevstigneeva sees the judiciary as forming a competing center of lawmaking [11; 7]. Judicial lawmaking can be viewed as competing only in areas where and to the extent that the lawmaking of other branches of government deviates from the provisions of the constitution and the law. In other cases, judicial lawmaking will not be competitive but will rather take on a subsidiary and compensatory role.

Thus, judicial lawmaking is not always an expression of the system of checks and balances. Although the aspect of checks is more characteristic of judicial lawmaking than of the lawmaking of other branches of government, this is due to the fact that the administration of justice is the primary and exclusive function of the independent judiciary.

The stability of the legal order in any state largely depends on the observance of the principle of uniformity in judicial practice. The requirement for uniformity in the consideration of cases by courts is reflected in the Constitution of the Republic of Kazakhstan, according to which the Supreme Court (Article 81) is entrusted with the functions of judicial oversight over the activities of lower courts and providing clarifications on issues of judicial practice. The clarifications given by the Supreme Court of Kazakhstan in its normative rulings serve as a means of unifying judicial practice. The goal of these rulings is to ensure that similar cases are decided similarly by all courts in the Republic. Through the systematic issuance of normative rulings, the court addresses the most pressing unclear and controversial issues in the resolution of specific categories of cases. The activities of the Supreme Court in this regard are not spontaneous but are constant and systematic. This approach helps avoid the long process of establishing uniform judicial practice through prolonged consistency in the resolution of similar cases.

Despite the significant role of the Supreme Court’s clarifications for the legal system, some authors suggest prohibiting the Supreme Court from providing clarifications on judicial practice. For example, A.I. Boytsov comes to this conclusion based on the following reasoning: “Interpretation, which is an element of the law enforcement process, significantly differs from the interpretation included in the system of lawmaking activities. From this perspective, the Supreme Court could be deprived of the authority to provide normative clarifications, while maintaining its role in summarizing the practices of lower courts, identifying typical errors, and making recommendations for their correction. Another, more radical path is to deprive the Supreme Court of the authority to provide any general clarifications. Unforeseen changes requiring new solutions and approaches would be addressed by the promptness of legislative response, which could ensure the timely formulation of optimal responses to the demands of changing life, thus ensuring the dynamism of the legal system. If necessary, the legislative body could adopt normative (authentic) interpretation acts” [22].

Interpretation is not only a necessary part, element, and prerequisite of lawmaking and law enforcement activities, but can also be considered as a relatively independent legal phenomenon. In this form, it appears in acts of official normative interpretation, which, in essence, are the normative rulings of the Supreme Court of Kazakhstan. The Supreme Court is not only a law enforcement body and a judicial instance, but also an organ that carries out organizational and methodological guidance of judicial activity, ensuring uniformity and the necessary direction in judicial practice. The plenary session of the Supreme Court of Kazakhstan provides clarifications not as a judicial instance, but as a special judicial body. These clarifications have an independent, specific area of application, different from the directions of legislative and executive activities. It can be defined as the legal uncertainty of resolving issues arising in the administration of justice. Such clarifications also serve as a normative-legal positioning of the Supreme Court of Kazakhstan itself, and through it, the entire judiciary. These positions on various legal issues are manifestations of the independence and autonomy of the judiciary and the inadmissibility of the legislature imposing its anti-legal positions on the judiciary, which contradict the provisions of the Constitution of Kazakhstan and ratified international treaties. The work of the court, law enforcement agencies, and other authorities can no longer be imagined without the clarifications of the highest judicial authority. These clarifications have organically become an integral part of the "flesh and blood" of the legal life of our country.

R.Z. Livshits, while recognizing the Supreme Court’s clarifications as a source of law, nevertheless notes that they are “the most directive and least judicial acts in the entire judicial practice. The clarifications do not have the typical form of a sentence or decision, and they lack the specific circumstances of any given case. Externally, the clarifications resemble a typical act of a legislative or administrative body, and one can find, if desired, in them the hypothesis, disposition, and sanction, just as in a legal norm. The fact that the Supreme Court’s clarifications were recognized as having a normative role was more of an administrative intrusion into judicial practice than a recognition of the independent role of judicial practice in regulating social relations” [3; 5].

Indeed, these clarifications from the Supreme Court may somewhat conflict with the nature of judicial power, but to call them an "administrative intrusion into judicial practice" is, at the very least, an exaggeration. After all, these clarifications are issued by the court, not by the Ministry of Justice, as an administrative body.

The emergence and consolidation of judicial lawmaking in the Russian Federation in the form of clarifications from the Plenary Session of the Supreme Court of the Russian Federation, according to O.V. Popov, is due to the fact that the legal system of the Russian Federation "traditionally gravitates not towards judicial precedent, but towards normative legal acts." Therefore, the author continues, "the norms created by the courts are mostly expressed in the resolutions of the Plenary Session of the Supreme Court of the Russian Federation, which, by their nature, are very similar to normative legal acts" [29; 16]. The same can be said about the legal system of Kazakhstan and the normative resolutions of the Supreme Court of Kazakhstan.

The Supreme Court issues normative resolutions not in connection with the resolution of a specific case or the administration of justice, but based on the analysis and generalization of the law enforcement practices of lower courts. According to G.B. Evstigneeva, the issuing of abstract, general clarifications by higher courts is inconsistent with the nature of judicial power. She does not advocate for the abolition of this right of the Supreme Court, but instead sets forth certain requirements for such clarifications based on the nature of judicial power itself. Thus, G.B. Evstigneeva believes that "from the standpoint of the separation of powers, lawmaking by the judiciary is permissible only within the framework of its specific function – resolving disputes regarding violated rights. The judiciary, in the form of higher courts, can issue law-establishing decisions without substituting the legislator and remaining within the judicial jurisdictional tasks. Therefore," the author continues, "it is not judicial lawmaking as such that contradicts the separation of powers, but rather the lawmaking activity of higher courts carried out through abstract normative interpretations of the constitution or law. "Quasi-normative" acts of the judiciary, issued in the form of abstract normative interpretation, contradict the separation of powers. The nature of judicial power implies only concrete normative interpretation of the constitution or law in connection with resolving a specific dispute. In other words, from the standpoint of the separation of powers, only concrete (incidental) normative interpretation of the constitution or law is permissible, resulting in the creation of a precedent for interpretation. Even if a "quasi-normative" act is issued, as is the case in some post-Soviet countries – for example, a clarification from the Supreme Court – it should be a clarification that does not precede judicial practice, but one that summarizes legal positions already expressed through concrete normative interpretation" [11; 20].

Thus, the Supreme Court is entitled to provide clarifications only on issues of already existing, not presumed, law enforcement judicial practice. For example, if the Parliament of Kazakhstan passes a new law that, in the opinion of the Supreme Court, may cause significant difficulties in its application by the courts, the Supreme Court is not authorized to provide any clarifications of this law before summarizing the corresponding judicial practice. These clarifications should only address those issues of law application by the courts that have already arisen. For instance, if the same provision of the new law is interpreted and applied differently by the courts in resolving similar cases.

This approach brings the clarifications closer to the law enforcement essence of judicial power, eliminating the discrepancy between the Supreme Court’s clarifications and the nature of judicial authority. This convergence is marked by several parameters. First, it brings the clarifications closer to the law enforcement essence of judicial power, where clarifications are given only on issues that have arisen in judicial practice. Second, the clarifications are made not on any law enforcement practice (such as prosecutorial practice, Ministry of Internal Affairs practices, etc.), but only on issues that have arisen specifically in judicial practice in the exercise of justice, which is the primary and exclusive function of the judiciary. Third, under this approach, the Supreme Court’s normative resolutions will be directed solely at clarifying past cases, rather than regulating potential future disputes. Fourth, the role of the Supreme Court’s own initiative in issuing normative resolutions is reduced, as this is not inherent to the nature of judicial power. The clarifications are given as an adequate response to already existing issues in judicial practice. The Supreme Court provides clarifications similarly to how a judge, when resolving a non-typical complex case, with defective legislation, is forced to inject significant creativity in interpreting and applying such legislation to resolve a specific case that arose not by the judge"s initiative but by the petition of an interested party.

Fifth, the clarifications issued by the Supreme Court are not based on its subjective will, but on existing norms and principles of law, taking into account the positions of lower courts. The Supreme Court issues normative resolutions not based solely on its own volition, not autonomously, but through mandatory consideration of the positions already held by lower courts. Thus, the normative resolutions are the result of the activity of the entire judicial system as a whole, aimed at resolving legal issues that have not received a direct answer in the law or were not addressed at all. Of course, the clarifications regarding content are not a mechanical reflection of the provisions developed by judicial practice. On the contrary, clarifications usually prescribe solutions to legal problems that cause discrepancies in practice—in order to bring it to uniformity. By bringing the variety of positions of lower courts to a common denominator, the Supreme Court thus develops its own position on a particular legal issue. The Supreme Court, summarizing judicial practice across the entire country, has a broader perspective than a court dealing with a specific, even if typical, case. During such analysis and generalization, new interpretative aspects of applied legal norms may emerge that may elude an individual judge resolving a specific case.

Unlike the lawmaking activities of the legislative and executive branches, the lawmaking by the Supreme Court does not have a targeted nature. It does not occur because the Supreme Court wants to regulate certain relations differently than the other branches of government, but rather arises from defects in the current legislation, the dynamism, and the diversity of social relations. The Supreme Court does not engage in lawmaking as such. The norms of law established by it are not purposefully created, but are part of the legal clarification activity aimed at ensuring uniformity and the proper direction of judicial practice.

Although, in general, it is not a derivative source of law (the act itself may not be derivative, just as one branch of government is not derivative of another, but the provisions contained within it may be), the normative resolutions of the Supreme Court do have a subsidiary nature. The degree of novelty and demand for the Supreme Court"s normative resolutions as a source of law is inversely proportional, on the one hand, to the adequacy of legislation to society"s needs for legal regulation, and, on the other hand, to the internal consistency and non-contradiction of the system of existing positive law. It is directly proportional to the degree of reflection of these phenomena in judicial practice. Of course, not all flaws in normative-legal regulation are reflected in judicial practice, as the subject of judicial review typically concerns the most significant relations for individuals, but still, there are quantitatively far more cases. The activity of citizens in appealing to the court, their awareness of their rights, and their level of trust in the judicial system play an important role here.

In conclusion, it is worth highlighting the main points discussed:

1.Judicial lawmaking does not contradict the principle of separation of powers. Judicial lawmaking is based on the lawful discretion of the court, the impossibility of complete adequacy of legislation to address specific life situations, and the internal inconsistency of the existing system of positive law.

2.Characteristics of judicial lawmaking include:

oFirstly, the absence of a clearly defined sphere of legal regulation;

Secondly, judicial lawmaking is largely derivative of the necessity and permissibility of judicial discretion;

Thirdly, the court must avoid applying considerations of economic and social policy in its decisions;

Fourthly, judicial lawmaking is always connected with existing facts from the past, rather than the creation of new future relationships;

Fifthly, the court creates norms of law not on its own initiative, not purposefully;

Sixthly, judicial lawmaking is, in general, subsidiary and compensatory in nature;

Seventhly, judicial lawmaking has a narrower scope than legislative lawmaking, but it excels in depth and specificity.

3.Judicial lawmaking is an essential condition for the effective, dynamic functioning of society and the creation of a self-developing and self-regulating civil society system. In this context, the court acts as a conduit for law in life, as a self-adjusting system. When legal information moves from society to the state, judicial practice can anticipate new legislative provisions, as courts are the first to identify and develop new or unregulated legal issues that legislative bodies may later formalize into law.

4.Judicial lawmaking within the system of checks and balances is related specifically to checks designed to keep the activities of other branches of government within the limits of the constitution and law. Oppositions, on the other hand, are more politically oriented and are mainly limited to the interactions between the legislative and executive branches. Judicial lawmaking can only be considered as competing in cases where and to the extent that lawmaking by other branches departs from the provisions of the constitution and law. In other instances, it remains subsidiary and compensatory.

5.The provisions of normative resolutions by the Supreme Court as a source of law can be divided into three types:

Derivative (which only specify already existing norms of law),

Competing (which clarify provisions of the explained act based on a normative-legal document with greater legal force),

Filling gaps in positive law (preceding the law, reflecting the needs of society in legal regulation).

The first type of provisions largely reflects the subsidiary nature of judicial activity.

The second type reflects the independence of the judiciary and manifests as part of the system of checks through judicial lawmaking. The third type highlights the role of the court as a unique conduit for law into life, as a self-adjusting system. It is important to note that these components are not isolated but influence each other to varying degrees.