Judges and law: The nineteenth- and twentieth-century debates of philosophers and theorists of law on judges as creators of law

Abstract

The article reviews various theses advanced by philosophers and theorists of law from the 1860s onwards, which challenged Montesquieu’s famous theses that judges are only ‘the mouth of the law’ and that the judicial power is almost null. These theses, connected with the idea of the separation of powers, underpinned legal positivism, a theory that dominated the nineteenth century. Soon, however, the question arose whether every legal act or decree is law. The question was addressed by Rudolf Stammler (law must be just), Leon Duguit (law is law only if it accepts the principle of solidarity) and Hermann Kantorowicz (Gnaeus Flavius), who argued for free judicial decision-making: judges should be free to decide whether a decree or legal act should be treated as law. After World War II and the experience of legislation in the Third Reich, Gustav Radbruch argued that intolerably unjust laws should not be regarded as legally valid, even if properly promulgated. Many philosophers returned to the idea of natural law. The result was the introduction into many constitutional texts and into international law of such notions as human rights and equality before the law; this phenomenon was often called a legalisation (positive formulation) of natural law. Consequently, through the development of constitutional courts, judges became indirect legislators, since they can rule that the norms are not law because they contradict the constitution. The idea that judges are only the ‘mouths of the law’, with no possibility of denying or questioning the legal character of decrees or norms enacted by the legislature, has been practically rejected.