Edited By Dariusz Jemielniak
The Judicial Role between Law and Politics. A Theoretical Analysis
There are many points of view one can take on the role of judges in the society: a personal perspective based on the history of one’s experiences, a perspective of the judge himself, a philosophical perspective focused on judges’ function in the political and legal system, and, finally, a sociological perspective focused on the mutual relationships between judges and other social roles. The last perspective, represented in this paper, is an abstract one, because it does not view the judge as a person, an official position or a function of economic decision making. It is oriented from the outset on the judicial role and structural consequences of its position for what the judges do and what to expect from them. Furthermore, ‚position-role‘ of the judges is determined by historical processes triggered by ideas and interests. However, the perspective proposed here is not reducible to ideas, interests or personal aspects of judicial activities. It takes all these factors as institutional or psychological solutions of social problems with which judges are dealing. I argue that there are three fundamental concepts of the role of judges corresponding to three concepts of the way law solves the problem of human position in society. Consequently, the role of judges may be viewed as a central position role in the social system that determines the basic expectations defined in human interactions. In the first section of the paper, I juxtapose the legal and political aspects of the judicial role as the general...
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