Publication details
Dělba moci a legitimita soudcovské tvorby práva
| Title in English | Separation of Powers and Legitimacy of Judicial Creation of Law |
|---|---|
| Authors | |
| Year of publication | 2015 |
| Type | Article in Periodical |
| Magazine / Source | MUNI Law Working Papers |
| Citation | |
| Web | http://workingpapers.law.muni.cz/dokumenty/31431 |
| Keywords | Separation of Powers, Checks and Balances, Legitimacy, Judicial Creation of Law, Legal Theory |
| Description | In his text the author examines issues of judicial creation of law, its legitimacy and a relation to the principle of separation of powers, which is a traditional source of arguments against it. In the first part of his paper he presents the assertion that this principle is in its contemporary form too vague and indefinite to determine clear rules for an institutional order of state and an unambiguous conclusion about admissibility or inadmissibility of judicial creation of law. The reason of this situation is hardly resolvable tension between the separation of powers and the checks and balances as well as its different purposes (protection against despotism and optimization of government). In his analysis he does not also omit the influences of social and institutional metamorphoses of the examined principle. In the second part of the text the question of legitimacy of judicial creation of law is conceptualized. The author examines the arguments that are mostly used to its support. The specific attention is dedicated to the characterization of judiciary as an expert power and consequences of this characterization. He also attempts to specify relations between the separation of powers and the legitimacy of courts and their decision making. Last of all he asks the question if we are capable to justify a judicial creation of law beyond the context of the separation of powers in these days. |