Legislation and Adjudication*

Fernando Atria

in The Logic of Legal Requirements

Published in print September 2012 | ISBN: 9780199661640
Published online January 2013 | e-ISBN: 9780191745461 | DOI:
Legislation and Adjudication*

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This chapter deals with general features of government by general norms, and enquires into the history of ideas regarding general legislation and judicial application. By evocating Hart's dichotomy between formalism and scepticism, it revisits some fundamental notions at the basis of contemporary legal systems, and the debates which accompanied their institutional implementation. The chapter provides a prolonged criticism of the ‘judge as an automaton model’, which is innovatively assigned to formalists and sceptics alike. It goes on to provide a defence of a new model which ‘maximize[s] the possibility that all the relevant elements of the particular case before the judge are subject to a scrutiny as close as necessary, and [which] minimize[s] the possibility that when it comes to deciding the case the judge will pursue goals or ends different to giving each their own’.

Keywords: norms; government; Hart; formalism; scepticism; legal systems; judge

Chapter.  23027 words. 

Subjects: Jurisprudence and Philosophy of Law

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