The phenomenon of judge law or the “Hohfeld case” revisited

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.