Conceptualising Judicial Application of Law in the Polish Theory of Legal Interpretation

The article presents the issue of the judicial application of the law in contemporary Civil Law jurisdictions. This topic arouses a great deal of controversy, because it is associated with granting courts a wide range of discretionary powers, including lawmaking. In the theoretical-legal literature this issue is often dealt with by juxtaposing different ideologies on the judicial application of law: bound, free or legal and rational. This division was introduced and developed by Jerzy Wroblewski, whose concept of the judicial application of law is presented and critically analyzed in the present article, with particular attention paid to the principle of the separation of powers. In recent Polish theoretical-legal literature, discussion on this issue has tended to focus less on whether the courts in our legal system possess lawmaking competence, and more on whether they should be allowed such competence. This is due to the fact that a view now prevails in the literature which holds that, in certain cases, there is a need for creative interpretation of the law, as this can remedy the poor quality of the law enacted by the legislator.