Abstract
The article examines the still disputed phenomenon of the so-called judge law. This term implies the ability of judges “to make law” besides the national legislative body. Although the proponents of judge law were often accused of trying to destroy the paradigm of supremacy of legislative acts over all other legal acts, including court decisions, the judge law ideology never questioned the crucial importance of normative acts, emanating from national legislative bodies. The problem of these acts is that they – more often than not – do not reflect the real social conditions, a particular judge is confronted with. In many cases, a judge cannot rely on legislative acts, because – in terms of the French Code Civil – the necessary normative provisions are non-existent, fuzzy, or insufficient. Nevertheless, any judge has to properly adjudicate a case at hand if he/she is eager to circumvent the accusation of denial of justice. According to Hohfeld professional lawyers, including judges, are usually not coherent while using the fundamental legal concepts, such as “contract”, “property”, “business”, “corporation” etc. In practical life it means the following: either one can depict his or her interests in the terms of “rights” or he/she is simply legally non-existent.
Highlights
The path of law does not guarantee a smooth journey from birth to death to anyone: difficulties and confrontations are bound to occur in the course of life of any person
The proponents of judge law in the early 20th century suggested that the change of legal paradigm with the legislative power at its apex had been long overdue
Some legal positivists were taken by surprise: for them the “battle cry” of proponents of judge law came to be very disquieting
Summary
The path of law does not guarantee a smooth journey from birth to death to anyone: difficulties and confrontations are bound to occur in the course of life of any person. This means that the key to the nature of legal profession is the figure of a mysterious judge who is trying a hard case. You do not have to forgo hard legal training in the spring of your life in order to “solve” easy cases later on as a professional lawyer. One cannot dismiss the famous statement of Oliver Wendell Holmes Jr.: “The prophecies of what the courts will do and nothing more pretentious, are what I mean by the law” [1].
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