How the legislator and jurisprudence can increase the pro-systemic nature of judicial interpretation and application of the law
Abstrakt
The paper analyses various ways the legislator and legal theorists can influence the pro-systemic nature of judicial decision-making in countries of the civil-law culture. The term "pro-systemic" denotes here a form of judicial interpretation that contributes to maintaining the given social order.
In the introduction, the author outlines Berger's and Luckmann's conception of social order adapted to the field of law, and in this context, also shows what role is played by the legislator and especially the judiciary in relation to the social order in countries of the civil-law culture. It is also explained why pro-systemic methods of decision-making should be preferred.
The following part examines how the legislator's careful consideration of linguistic formulations and contents of the legal rules being adopted can narrow the potential for adopting non-systemic decisions. At the same time, recent cognitivist findings serve to verify certain traditional legal and philosophical theories; they also form the basis for developing recommendations regarding the form of law-making that would increase the subsequent pro-systemic nature of the fact-finding processes.
Considerable attention is also paid to the language, its nature and types (in particular, abstract expressions). The focus then shifts to the question of how jurisprudence can influence the pro-systemic nature of decision-making by suitably affecting the contents of the future pre-knowledge on the part of interpreters.
In this respect, the author formulates recommendations regarding an appropriate form of interpretation methodologies and also pays closer attention to their legitimation, and in particular, the role they play in the processes of socialisation. The paper concludes by presenting the pitfalls associated with a completely pro-systemic exercise of justice.