ABOUT THE PROJECT
This research project dives into the very core of the relationship between law and politics, focusing on how the ideological profiles of bearers of judicial power influence their performance. The term ideological profile is not used here in the pejorative sense of ideology as something negative, manipulative or even dangerous. Rather an ideological profile is the comprehensive system of values, beliefs and views through which a person sees and helps create the social world around him or herself, which includes the law. It covers political views in the broadest sense of politics as everything related to public matters.
The topic of the proposed project touches on the heart of discussions on law and the social role of the judiciary. Attitude towards ideology is a key distinguishing element between two basic conceptions of law.
Central Europe, including Slovenia, sees law as an objectivist and positivist system, which draws its authority from its form. According to this conception, court rulings need to be respected because they are made by institutions consisting exclusively of legal experts who have no preference in terms of values, or their own values in no way affect their passing of judgements. This is also reflected in the traditional appearance of the judiciary: Judges wear special robes and in some cases wigs to hide their faces from the public, and show that they are different from ordinary people, that they have authority and are consecrated for making judicial decisions.
The principal author of this approach to law – at least in theory if not necessarily in practice – was Hans Kelsen. According to his theoretical views, law is a system of hierarchically organised legal rules in which higher-ranking rules determine the content and procedure for the creation of lower-ranking legal norms. The highest formal legal act is the constitution, which determines all other, lower-ranking legal acts and is not derived from any formal legal act, but rather a meta-norm that is the logical precondition for the entire legal system. Law thus creates and recreates itself and is completely separate from other normative systems: morality, religion, politics. This is the essence of its purity. Law is pure science with no other social and value-related components, so these cannot be used to judge its (in)validity or the (in)appropriateness of legal regulations. Morality, let alone politics, is outside the realm of legal science. And therefore also cannot affect lawyers as such. Lawyers are seen as objective and capable of searching for and finding the material truth because, in their core, they are dedicated to pure law and cannot be influenced by morality and politics. Therefore, also the scope of law, according to Kelsen, is very narrow, and definitely strictly separate from politics and other social, value and worldview-related elements.
A different approach comes from understanding law as an argumentative and discursive practice. This concept of law is embodied on the global level in Dworkin’s approach to law as an interpretative practice, while the biggest contribution in the European context comes from Alexy’s legal theory and the philosophical, sociological and political-science approach of Habermas. In this view, the authority of law and particularly courts is based on how convincing the arguments are underlying their decisions. It is thus not about the form or creating an appearance – with wigs or by stressing that not everyone can wear a judge’s robe –, but rather about content and arguments that will convince the parties involved and the general public why it was right that one particular party lost and the other one won. If law is an argumentative and discursive practice and court senates comprise several different judges, it is clear that these judges will often support different legal opinions and provide different arguments for them. This is not only self-evident but it is right as well, because only the existence of different views can guarantee a fair trial, objective in the sense of ensuring the broadest possible intersubjectivity. Law as a discursive and argumentative practice, limited by specific legal and institutional rules of discourse, turns the focus on the subject – the lawyer, who makes the decision. Between a legal regulation and a practical legal issue, there is always a person – the lawyer, who must always make the decision him or herself and must also take responsibility for it. Law is therefore not something objective, but a product of lawyers, who are people made of flesh and blood, and who have a well-defined ideological profile, as is expected of an adult, mature person and a legal expert.
This latter view of law is the scientific basis of the proposed project. This means that it is taken as a fact that judicial decision-makers have an ideological profile, and – instead of rejecting it on normative grounds – we will research it empirically using an interdisciplinary interpretative framework. In so doing, we will also form normative recommendations regarding the institutional organisation of the judicial branch of power.