Tuesday, April 25, 2006

Law, Criticism and the Courts

One of the flawed, but very persistent, dogmas in Slovenia is that the pronunciations of the courts, of whichever instance, but especially of the highest courts, should not be commented on, rather they should be taken for granted. It has been even claimed, most recently yesterday by the top Slovenian politian, that this is to be a fortiori observed by lawyers.

If we followed this kind of reasoning we would end up in a paradoxical situation where the essence of law, i.e. legal reasoning would be banned out of the law's realm. All judicial decisions have to be reasoned precisely because they are to be assessed for their correctness and persuasiveness. Of course, final decisions of the highest courts are presumed to be correct and should stay and be obeyed as they are. HOWEVER, it is the DUTY of law academics and practitioners to assess and analyze these judgments for their argumentative persuasiveness, for their fit with all things considered. Those who argue the opposite have simply missed the point and committed a category error.

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