Judge Made Law and Judicial Interpretation as Systemic Element of Law in Civil Law Legal Systems: How Can Courts Strengthen or Weaken the Unity of a Legal System?
Abstract
In the late 19th century, jurisprudence in the countries of continental law began to abandon the cognitivist view of courts as mere "subsumption machines". In "hard cases", judicial interpretation of law is thus also conceived as its formation.
Judicial decisions now, much more often than in the past, go against the very wording of the law. This approach is based on arguments relying on legal principles, values or purposes.
Such a manner of decision-making, however, gives rise to some issues: Excessively broad conclusions can lead to unwanted consequences and unpredictable impacts in future cases. Arguments contra verba legis raise the question of recognising the actual purpose of the law, and also a more general question of relationship between the judicial branch and the democratic legislature.
On the other hand, it can be argued that, using applied principles and values, the courts can improve the coherence of the law, which is characterised by a great many regulations which are frequently amended. The courts can thus counter the postmodern "deconstruction of law".
The workshop attempted to answer questions related to two interconnected issues: (i) what role is assumed by courts in democratic countries governed by the rule of law and (ii) what should their decision-making be like for it to improve general coherence of the law. Such questions include, for example:.
What role can be played by the manner of use of interpretation methods in terms of strengthening or weakening the law as a system?. Is it legitimate for the courts to formulate, in their decisions, general principles and rules which have a potential to impact a very broad circle of future cases?.
To what degree is it effective and possible to bind judges by legislative means to use a certain method of interpreting the law?