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- Author or Editor: Krisztina Ficsor x
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In this essay, the author attempts to reveal the character and theoretical limits of judicial formalism. Formalism is a normative theory of adjudication which means that it provides determined answers to the question of how judges should decide legal cases. Judicial formalism is related to the view that legal reasoning is a special area of practical reasoning because legal reasoning should rely on reasons and arguments that stem from a limited domain of practical reasons: lawyers should justify legal decisions by relying on the reasons that originate in socalled source-based law. However, one of the tasks of legal theory is to solve the problem of judicial formalism which arises during legal practice. It can often occur that the decision, which follows clearly from the sourcebased law, is unjust or unfair if we take all relevant factors and the wider context of the case into consideration. The theoretical issue is whether judges are allowed to depart from the source-based law and if they are, in what type of cases can they do this. This essay tries to throw light on the theoretical conceptions within which the problem of formalism can be handled, for example, the theory of the nature of law or virtue jurisprudence.
Abstract
The principle of legality includes numerous requirements which guarantee that criminal law and its application meet the demands of the rule of law and legal certainty. One of these requirements is maximum certainty according to which the rules of criminal law must be defined in a clear and precise way in order to make criminal law understandable and predictable for citizens. In the practice of the Hungarian Constitutional Court this requirement is called the ‘clarity of norms’ doctrine. However, the theoretical content of this doctrine is obscure and is also ambiguous in the practice of the Constitutional Court. It is also a problematic phenomenon in the Hungarian judicial practice that the principle of maximum certainty is treated as a mere linguistic issue. Judges try to solve criminal cases in which criminal laws are uncertain by searching for the meaning of words in dictionaries and do not tend to take into consideration moral or justificatory reasons behind the relevant criminal law. The Author throws light on the above mentioned problematic elements in the Hungarian legal practice and makes efforts to suggest a theoretical solution for these problems.
