Projects / Programmes
Adjudication (before Constitutional and Regular Courts)
| Code |
Science |
Field |
Subfield |
| 5.05.00 |
Social sciences |
Law |
|
| Code |
Science |
Field |
| S110 |
Social sciences |
Juridical sciences |
| Code |
Science |
Field |
| 5.05 |
Social Sciences |
Law |
constitutional review, adjudication, rule of law, democracy, the principle of proportionality, ethics, professional ethics, international law
Researchers (14)
Organisations (1)
Abstract
A crucial aspect of law's existence is its social concretisation. In this respect adjudication’s task of transforming general rules into directives, which directly influence social reality, is of paramount importance. In spite of great importance adjudication plays in law’s concretisation, judicial decision-making has been largely overlooked in the continental legal theory. The main goal of the proposed research project is to highlight the pervasive importance of judicial adjudication before both regular and constitutional courts and to situate adjudication in wider social and ethical context.
Research will proceed from basic theoretical problems of adjudication (legal argumentation, balancing) to more general problems, such as the role the courts play in increasingly intensive interplay (and interdependence) of Slovenian law on the one hand and international and European law on the other, the analysis of inner dynamic of the court system in the Republic of Slovenia (in particular between regular courts and constitutional court), and, finally, the problems concerning the influence of social factors (such as public opinion and ethics) on the judiciary.
The main theoretical starting-point of the research project will be modern understanding of judicial decision-making as a creative activity, which has to bridge a gap between normative material (consisting of general norms) and legally relevant facts. An ever more important role in legal reasoning is played by legal principles, which provide an ethical dimension of adjudicating. Part of the research will focus on so called balancing (as a case-study in constitutional decision-making) of rights and legally protected values, which plays an increasingly pivotal role in the jurisprudence of Slovenian constitutional court, as well as in virtually all jurisdictions and before international tribunals.
The theoretical part will be followed by a detailed analysis of the role of courts, in particular the Slovenian constitutional court, in the ever greater consideration the international law is given within Slovenian law. The preliminary hypothesis of the research will be that international law is slowly becoming an indispensable source of adjudication in modern law.
Whereas the international dimension is a thrilling modern development in theoretical study of adjudication, a very interesting set of problems has recently developed within national legal systems with the introduction of constitutional review into continental legal systems after the Second World War. This creative tension has displayed itself in Slovenian legal system as well, in particular after Slovenia has gained its independence and introduced a fully-fledged judicial review. The research will – in this respect – seek answers to very important and burning problems, set forth in a recent (and still open) debate on far-reaching constitutional changes (proposing to introduce discretionary power of the Constitutional Court to rule on only those cases it deems important enough), and the interconnected challenges to the established legal culture. As an important aspect of the immediate impact adjudication has on every-day life, new trends in tort law will be presented and analysed. In particular, the research will highlight the shift in emphasis towards the punitive conception of tort law.
Finally, the research will address the issue of wider social setting of adjudication. One important aspect of such social dimension is the question of judicial ethics and its impact on adjudication, which will highlight the relative inadequacy of strict adherence to positive law in the quest for correct and acceptable judicial decisions. The other important aspect are the often overlooked relations between the civil society and judiciary, displayed primarily in the influence of public opinion on adjudication, and having an important impact on the perceived legitimacy of judicial decisions.
Significance for science
The traditional Continental legal theory perceives the posited law, adopted by the democratically elected legislature, above all other forms of law as the starting-point and the basis of its investigations. Judicial decision-making was therefore very much a neglected subject of Continental jurisprudence. First signs of fresh interest can be detected at the beginning of the 20th cent., when a realisation that judicial adjudication is an equally important part of law begins to emerge. Judicial adjudication is perceived as an important intermediary between the abstractness of concepts, imbedded in typical legal norms, and real life. Even more important is the realisation that legal gaps thrust upon courts the role of legislator, creating – at least – a germ of a stable jurisprudence, functioning as de facto general legal norms and determining future judicial decisions. To this extent, at least, judicial decisions are today taken to be a part of the law, while the momentum is building (in the civil law countries) for the recognition of an even more important role of judicial law. An important impetus for the recognition of judicial law was the creation of modern constitutional courts (hereinafter: CC). Their decisions quickly established themselves as side-constraints of modern legislatures, which indirectly guide their law-creation. At least to this extent judicial law has been recognised as a basis for legislation, thus thoroughly reversing the traditional understanding which subordinates judicial law to the enacted law. The analysis of European trends in this regard is an important starting-point for an in-depth investigation of (an even more complex) Slov. experience. The endeavours of this research are therefore very important and in some respect even pioneering in Slov. context. In their reports, research group members have pointed out the following conclusions: - Constitutional adjudication in particular and judicial adjudication in general is slowly gaining recognition (in continental legal systems) as a legal source on a par with enacted law. Decisions of CC and regular courts determine to a very important extent the understanding of constitution and other enacted law. This has also been verified empirically. - The scope of constitutional adjudication is growing, so that individual CC decisions exert direct influence on individual bodies of law (CC jurisprudence is therefore not restricted to traditional areas of dispute) as well as on ever growing use of statutory interpretation in conformity with constitution, which means that constitution is increasingly perceived as a guideline in application of law in general. - En ever livelier appreciation of Slov. legal order being a part of wider international and European legal order can be detected. Slov. courts rely increasingly on EU law and on international law. This trend is most obvious in the direct influence of ECHR jurisprudence on the Slov. CC’s adjudication, in an increasing recognition of a much broader reliance on EU law and paying more regard to international law in constitutional court adjudication. - CC’s adjudication has to be imbedded in broader appreciation of social context. A sizeable portion of our research has been devoted to exploring the ethical framework of constitutional court adjudication and sociological aspects of its jurisprudence. Our results confirm the hypothesis that these trends are clearly discernible, but that at the same time research group members almost univocally stress, that this is an unfinished process and that there is ample room for improvement. An important part of the research is therefore dedicated to the pinpointing the weak points in Slov. practise of constitutionalism and where improvements can be made in our understanding of law and the importance of constitutional in particular and judicial decision-making in general.
Significance for the country
It is of paramount importance for the Slovenian development to appreciate the importance of constitutional and judicial adjudication. Comprehensive understanding of these topics would bring to light the enormous import adjudication has in any modern legal system. Exaggerated focus on the legislative rules combined with underappreciation of judicial law projects a distorted picture of law. A better understanding of the exceptional importance of jurisprudence is crucial for a more all-inclusive understanding of law in general. Our research has focused on fundamental questions, striving to alter deeply rooted thought patterns and calling for a fuller appreciation of a neglected aspect of the law. The research has called attention to the following aspects of constitutional and judicial decision-making more generally: - It highlights the importance of a judicial interpretation of laws in conformity with the constitution, which would realise already existing constitutional provisions, thereby ensuring a much fewer number of cases winding up at the Constitutional Court and decreasing its workload; - by analysing the existing reliance on EU and international law in Slovenian legal order and especially hesitation to do so even more extensively suggest how this can be meliorated; - analyses the degree to which ECHR jurisprudence is being taken into consideration in Constitutional Court jurisprudence; - considers the possible impact of the implementation of punitive damages in Slovenian tort law and highlights e.g. economic repercussions; - provides for an in-depth constitutional problems of parenthood and social security rights (as examples of constitutional rights, recognised by Constitutional Court jurisprudence, being implemented in legislation. The research also lays bare the social and ethical foundations of constitutional decision-making in calls for appreciation of these aspects in the endeavour to implement the rule of law in Slovenian legal order.
Most important scientific results
Annual report
2010,
2011,
2012,
final report,
complete report on dLib.si
Most important socioeconomically and culturally relevant results
Annual report
2010,
2011,
2012,
final report,
complete report on dLib.si
