Przeglądaj wg Słowo kluczowe "judicial activism"

Teraz wyświetlane 1 - 1 z 1
  • Miniatura
    Pozycja
    Competence of a civil judge in the field of decision making - reification function
    Damasiewicz, Agnieszka
    I am assuming that there are four functions of a judge: judicial, reification, mediatory and informative. This article focuses on reification function as this is a function that is carried out in parallel with judicial function. Both those functions interweave in a decision-making process performed by a judge - the second function, however, is not always carried out. Both funtions differ in relation to the degree of judicial activism applied in the process of interpretation of law. While judicial function does not require the application of judicial activism, reification function obliges a judge to apply activism that may be a source of controversy related to the dilemma that consists in determination what degree of judicial activism and judge’s creativity (or even law-making) should be applied. This article contains the answer to four questions. Firstly, what does the reification function consist in. While answering that question, I focused on the matter of incompleteness of a legal system and the source of such incompleteness. I presume that such a source may be caused by the following factors: characteristic features of the language; the difference between an abstract and general norm and a specific and individual one, as well as the static nature of the provisions compared to the dynamism of social and economic relations and culture. Then, I moved to the question why the reification is a function of judges. I have referred to the relation between static nature of a provision and dynamism that accompanies the process of turning an abstract into concrete norm pointing that in such conditions there must be a force that will shape this process and keep it in line with the goals and objectives of the legislator. And this force is personified by judiciary power. Then, I focus on answering the question why performing reification function by judges raises so many concerns. I have indicated that they may be related to three controversies – first controversy would be related to the boundary between the creation of law and its application, second controversy would focus on the ‘dangers’ hidden under general clauses, and a third one would concern the fear of a judge to realize the reification function as well as other functions. The last matter discussed in the article concerns the relation between reification function and a judge’s competence to make decisions. In this part, I focused on the item that is a common denominator for both of them - making an evaluation taking into account that the decision-making process is entirely related to deciding and predecisional processes. And that the essence of reification function consists in a particular manner in which the evaluation is made – based on judicial activism and reaching to broad range of premises contributing to making a decision.