Judicial activism in Ukraine: advantages, risks and legal boundaries
Authors: Koldashov Arthur , Hroza Darya 
Published: December 2024

Problem setting. The problem of judicial activism in Ukraine is complex and multifaceted, as it touches on the fundamental principles of the legal system and the functioning of the judicial branch of power. Judicial activism implies that judges can go beyond the traditional role of an arbitrator and actively intervene in lawmaking by interpreting laws or even creating new norms. Such an approach can have both positive consequences, in particular, in cases where the legislative branch does not provide proper legal regulation, and serious risks to law and order and constitutional stability. The main problem is to determine the limits of permissible judicial activism in order to avoid situations where courts exceed their powers, creating a threat to the principle of separation of powers. Such a situation can lead to the usurpation of power by the judicial branch and a violation of the balance between the judicial, legislative and executive branches of power. On the other hand, the passivity of the judiciary can also become a problem when the legislator or the executive branch does not have time to respond to social challenges.

So, the question arises: what are the legal limits of judicial activism in Ukraine? How to ensure a balance between the need for active interpretation of the law and compliance with the principle of the rule of law, while avoiding excessive interference of the courts in the sphere of lawmaking? The answer to this question is important not only for theoretical research, but also for the practice of law enforcement, since it has a direct impact on the quality of justice, the protection of citizens' rights and freedoms, and the stability of the legal system of Ukraine.

Analysis of recent research and publications. The study of judicial activism in Ukraine has been the subject of attention of such scholars as Vatamanyuk A., Goncharov V., Kozyubra M., Letnyanchyn L., Sydorovych R., Shevchuk S., and others.

Purpose of research is to analyze judicial activism, its advantages and risks. The task of the scientific research is to analyze the emergence of judicial activism and its characteristics as such.

Article’s main body. Judicial activism, in such a context, raises serious questions about whether it complies with the principles of separation of powers and whether it threatens the stability of the constitutional order. The article reveals the essence of judicial activism through the analysis of its origins, modern approaches to this phenomenon and its various forms. The causes of judicial activity, which can have both positive and negative consequences, are discussed separately. The author tries to classify different types of judicial activism, considering in detail their advantages and disadvantages. In particular, the problem of whether judges should engage in "lawmaking from scratch" is highlighted, creating new legal norms based on their own interpretation of the law and their own understanding of legal principles, which is extremely relevant, since the judicial system, on the one hand, is designed to protect the rights and freedoms of citizens but on the other hand, it should not go beyond its powers, replacing the legislative power. The author pays special attention to the analysis of Ukrainian realities, citing specific examples of judicial practice that illustrate manifestations of judicial activism in the national context. The article raises the question of whether judicial activism is justified and appropriate within the Ukrainian legal system, or whether it, on the contrary, can lead to the threat of destabilization of the legal order. Special attention was paid to the position of judge V.V. Lemak, who emphasizes the need for a balance between the active role of the court in protecting the rights of citizens and compliance with the principle of separation of powers. The author believes that judicial law-making is of crucial importance for the development of the legal system, because it allows the court to respond to the challenges of modernity, while preserving the foundations of legal stability.

Conclusions and prospects for development. This article analyzes the role of judges in shaping the legal system and the impact of their decisions on society. It helps to understand how judicial activism can contribute to the development of law, ensuring the protection of human rights and adapting legislation to modern challenges. At the same time, the article highlights the potential risks associated with judges exceeding their powers, which can lead to a violation of the principle of separation of powers. In addition, it outlines the legal boundaries within which judicial activism can be effective and legitimate. This makes the article a valuable source for lawyers, scholars, and politicians interested in issues of judicial reform and law enforcement in Ukraine.