<b> The Necessity of (re)Thinking the Realization of Law in Times of Judges Playing the Leading role - A Likely Course in Search of a Refounding Reflection with a New Meaning </b> <br> doi:10.5007/2177-7055.2011v32n63p213

Abstract

Law is inserted in the world of life. It is therefore inextricably linked to social, cultural, economic and political contingencies. Law is a dynamic science, which implies considering that new issues may become object of its interest or old issues may require current and committed reflections.One of the most recurrent issues in western philosophy of law and legal theory has been the understanding of the judge’s role and the limits of his activities. The judge has already  been viewed as a mere law enforcer, a neutral figure, radically impartial, whose role was restricted to pronouncing the truth ontological-substantially provided in the law (viewed as an authoritative text). The legislative branch was in charge of making laws and the judicial branch was in charge of enforcing such laws – an ascetical division among government agencies, functions and authorities was conceived, grounded in the classical understanding of the principle of separation of powers. Creativity was restricted to the scope of the legislative function exclusively performed by the legislative branch in contrast to the enforceability of jurisdiction. Nevertheless, is there a radical way to separate creation of law from “law enforcement”? We claim there is not, that the court activity is unmistakably creative, and the obligation to (re) think the judicial function and the role of judge is due to Courts, law professionals and legal scholars, especially in times of judges playing the leading role.