Book review: Aleš Novak and Marijan Pavčnik (eds.), SODNIŠKO PRAVO (eng. Judge-made law), Lexpera, GV Založba, Ljubljana, 2023

Abstract

The concept of legal normativity is inherently ambiguous. What qualifies as law, and by which criterion do we define it? The ongoing debate has for a long time revolved around its typologies. Yet, delving into the intricacies of the various players, their roles, and content creation within the legal game remains a formidable undertaking. Despite the consideration of various perspectives by the contemporary legal theory, the discourse sometimes remains superficial. Why does a segment of legal scholarship continue to assert that laws enacted by the legislature are the only convincingly viable source of legal norms? This paradigm, which one could connect with the allure of legal sentences as general and abstract norms contained within a legal code, may have a deeper and more complex epistemic origin than we imagine. There is something peculiar about our European-Continental legal culture, it seems. “Oh, a rule we shall follow? Write it down, pass it as law and I might consider it.” The persistent preoccupation with an abstract, all-encompassing system of knowledge highlights the serious attention given to this form of legal normativity. Despite the vast efficacy of such an approach, however, there will always be at least one critical step separating it from completely seizing our reality. As the numerous Slovenian authors of the here reviewed and recently published work Judge-made law have convincingly argued: It is none other than the judge whom the privilege of this very step belongs to. With the arising complexity of our social orders and various predicaments regarding applicable law, only the judge both can and must intervene in the equilibrium-establishing process, framed by the ever so persistent proliferation of legal regulation on one front while effectively resolving a (legal) dispute on the other.