The central issue of this paper concerns the discretion of judges in the application of the law, discretion that has expanded enormously, since judges are engaged in the direct application of principles drawn from the constitution or even - at times - from other legal orders altogether. Every legal system has its own methods of selecting and instituting judges, but of no system can it be said that they enjoy full democratic legitimacy and may be free to create law at will. Both in the US and in continental Europe many perceive the need to find some strategies that might bring the interpretative discretion under control, seeking suggestions sometimes in the theory of legal sources, sometimes in the theory of legal interpretation. The point of this paper is that no answer can be found because we are asking the wrong questions. The work is divided into two parts. In the first part, I make use of some hints provided by epistemological reflections of quantum physics theorists, above all Heisenberg. The critical perspective is that of “ontological materialism”, i.e. the idea that in the process of legal interpretation and application, the interpreter is dealing with a “thing” that exists independent of his/her intervention. In the second part, I attempt to suggest a possible solution to the impasse, exploring the meaning of the institutional dimension of legal interpretation and application.
A discrezione del giudice. Ordine e disordine, una prospettiva "quantistica"
BIN, Roberto
2013
Abstract
The central issue of this paper concerns the discretion of judges in the application of the law, discretion that has expanded enormously, since judges are engaged in the direct application of principles drawn from the constitution or even - at times - from other legal orders altogether. Every legal system has its own methods of selecting and instituting judges, but of no system can it be said that they enjoy full democratic legitimacy and may be free to create law at will. Both in the US and in continental Europe many perceive the need to find some strategies that might bring the interpretative discretion under control, seeking suggestions sometimes in the theory of legal sources, sometimes in the theory of legal interpretation. The point of this paper is that no answer can be found because we are asking the wrong questions. The work is divided into two parts. In the first part, I make use of some hints provided by epistemological reflections of quantum physics theorists, above all Heisenberg. The critical perspective is that of “ontological materialism”, i.e. the idea that in the process of legal interpretation and application, the interpreter is dealing with a “thing” that exists independent of his/her intervention. In the second part, I attempt to suggest a possible solution to the impasse, exploring the meaning of the institutional dimension of legal interpretation and application.I documenti in SFERA sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
