| Abstract [eng] |
The work of judges is dependent on generally accepted statements about the nature of their activity. The content of these statements is filled by judicial ideology, description of judicial activity which is constructed through a complex set of interactions between academic teachings, political rhetoric of the separation of powers, judicial self-perceptions, the views and expectations of the legal community, and the prevailing opinions of society as a whole on the proper role of the judiciary. All approaches to the judicial application of law, that is to the role of judges in interpreting and applying law, may be divided into three broad groups: 1) the Classical approach or the model of bound judicial decision-making; 2) the Realistic approach or the model of free judicial decision-making; and 3) the Socio-Economic approach or the model rational judicial decision-making. T he Classical approach denies that courts are the real authors of the law. It is proposed that judges are only the mouthpieces which give it expression. The model of bound judicial decision-making is opinion of the judicial process which explains the nature of the judicial activity as the application of enumerated preexisting standards, typically the rules contained in legislation. Legal theory based on this model strictly sets the line between the making of law, which is reserved exclusively to the legislature, and its application, which is assumed to be a process in which courts are supposed to apply that law mechanically to facts. The examples of such approach could be the role of the judges in the theories of legal positivism and legal normativism. Another group of theories, which could be described as the theories of the model of bound judicial decision-making, recognize that law is something that exists irrespective of the work of any person, institution or state. According to these theories law exists without respect of persons and just has to be found by a judge. The examples of these theories could be the doctrine of natural law, the Historical school of Jurisprudence and some sociological theories of law. |
