Realism and Judge of Constitutional Court

The article is devoted to the peculiarities of constitutional court judges’activities, which allow to call them realists. The author proceeds from the fact that the word “realism” can denote either one of the areas of the general theory of law, or type of behavior, or ontology of law. In his view, these meanings correspond to three different types of language. Since they are not logically interrelated, a judge of constitutional court may be realistic from one point of view but not from the other. In addition, the realistic legal theory allows for the existence of only empirical facts and declares universals fictions, so ontological realism and realism as a legal theory are incompatible. The choice of the rule of law applied by the judge depends on epistemological assumptions similar to those underlying the legal knowledge. On the examples from the practice of the Constitutional council of France, the author considers the possibility of a judge’s ability to be realistic. As a result, he concludes that declaring oneself a realist allows a judge of constitutional court to increase the level of legitimacy and leads to the strengthening of his discretionary power in the political and legal systems of a modern democratic society.