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Judges and Adjudication in Constitutional Democracies: A View from Legal Realism

Part of the Law and Philosophy Library Book Series (volume 135)

Editors: Chiassoni, Pierluigi; Spaić, Bojan

DOI: 10.1007/978-3-030-58186-2

ISBN: 978-3-030-58185-5

Publisher: Springer International Publishing - Springer Journals

Dec 12, 2020

1 - 9 of 9 Chapters

Available

Introduction

Chiassoni, Pierluigi; Spaić, Bojan

Pages: 1 –6

[In the last couple of decades, three topics have gained prominence in the province of jurisprudential inquiries: (1) legal interpretation; (2) legal realism; (3) the role of judges in contemporary constitutional democracies. The present collection of essays purports to offer original...
Available

The Roles of Judges in Democracies: A Realistic View

Leiter, Brian

Pages: 7 –34

[What are the “obligations” of judges in democracies? An adequate answer requires us to be realistic both about democracies and about law. Realism about democracy demands that we recognize that electoral outcomes are largely, though not entirely, unrelated to concrete policy choices by elected...
Available

Is Realism at Odds with Constitutional Democracy?

Chiassoni, Pierluigi

Pages: 35 –64

[The paper is devoted to the realism-constitutional democracy puzzle. On the one hand, constitutional democracy is committed to rule of law values like the “government of laws” (and not “of men”), legality, certainty, and separation of powers. On the other hand, legal realism sets forth a theory...
Available

On the (Un)Changing Judge Icons and Their Creators: On Deborah, Coke and Montesquieu, Posner and Barak, and Some Others

Hasanbegović, Jasminka

Pages: 65 –95

[This paper looks at the most important ideas and images of the judge throughout history. It is an attempt to provide an answer to the question whether the role of a judge in the society has remained the same since the dawn of time, or at least the birth of law and state, i.e. from the creation...
Available

An Exercise in Legal Realism

Guastini, Riccardo

Pages: 97 –109

[This paper is an exercise in legal realism. I shall argue in favour of seven purely realistic theses, concerning namely: (1) the relationship between legal realism and legal positivism; (2) the concept of validity; (3) the theory of interpretation; (4) the ontology of law; (5) the epistemology...
Available

A Causal View of Judicial Interpretation

Troper, Michel

Pages: 111 –122

[The skeptical version of the realist theory holds that judicial interpretation, performed by an authentic interpreter, is an act of the will, that interpretation cannot be true or false and is necessarily valid, whatever its content, that it is the interpreter who is the real producer of the...
Available

Rule(s) of Recognition and Canons of Interpretation

Burazin, Luka; Ratti, Giovanni Battista

Pages: 123 –138

[It is sometimes claimed (in Anglo-American jurisprudential literature) that the rule of recognition sets the criteria for identifying legal norms and that this, therefore, means that canons of interpretation are also part of these criteria. Such a view then faces the problem of theoretical...
Available

Legal Realism and Legal Doctrine

Priel, Dan

Pages: 139 –169

[Legal realism is popularly known for its hostility to legal doctrine. In the familiar narrative, the realists showed that legal doctrine does not, and cannot, constrain judges from using existing legal materials to reach virtually any outcome they want. As such, doctrine only serves to hides and...
Available

Epistemic Authority and Legal Interpretation

Spaić, Bojan

Pages: 171 –199

[The relations between epistemic authority and legal interpretation have been widely neglected in contemporary legal theory. In this paper I’ll lay out the grounds for the discussion about the sociological and philosophical conceptions of power and authority in order to access their relevance for...

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