Selected Papers Presented at the Fourth Central and Eastern European Forum for Legal, Political and Social Theorists, Celje, 23–24 March 2012
Edited By Péter Cserne, Miklós Könczöl and Marta Soniewicka
Within Democracy’s Reach? Revisiting Some Objections to Judge-made Law
There is hardly any doubt that contemporary legal systems of the civil law tradition acknowledge the value and importance of case law. Numerous examples from courts and academia alike demonstrate the need to maintain a relatively stable and coherent judicial practise and emphasise that arguments derived from previous court decisions have a considerable justifying force in subsequent decision-making. This, in turn, implies that the judiciary plays a somewhat creative role in the functioning of a legal system.
Even consistent and long-standing judicial interpretations of statutory or constitutional provisions are, however, only to be understood as having de facto or persuasive authority and cannot constitute ‘law’ as such. Such a theoretical position can mostly be explained with regard to certain features of the historical development within the continental legal tradition and is sometimes justified by reference to compelling political and constitutional considerations. More precisely, the central question in this context is whether fully and openly recognising such an active role of the judiciary in the law-making process, which is implied by the growing importance of judicial precedents, can be reconciled with the principle of separation of powers and the closely related issue of democratic legitimacy.
The aim of this contribution is to explore these two fundamental concepts and doctrines of our constitutional and political order in this context and to raise some doubts about the claim that they provide a basis for a powerful objection to judge-made law...
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