On Justice in Judicial Application of Law

Abstract

The article addresses the issue of justice in the judicial application of law. The discussion is focused on justice understood in substantive terms. The traditional formula “to render to everyone his or her own” (suum cuique tribuere) was adopted, filled with the content of natural, innate rights of the human person. The study identifies difficult cases and particularly difficult cases (referred to as truly difficult cases) in the judicial application of law. Difficult cases are situations where the legal provisions (normative act) that are to be the basis for the decision are unjust, immoral, wrong. Various possibilities of reaching a fair decision in such situations are identified, based on “legal instruments”, and therefore within the legal framework, focusing on the validation decision (establishing the normative basis for the law applying decision) and on practical (operative) interpretation. Particularly difficult cases (matters) are situations where a legal regulation is manifestly unjust, and thus morally grossly defective, wrong, while the law (the legal system) lacks “instruments” that would give the possibility of making a just decision. The possibilities available in such extraordinary, particularly exceptional and difficult situations of making a just decision, but which are necessary for the sake of justice, have been pointed out. The question of truth has also been tackled. The judge/court administers justice based on the truth. Learning about what has occurred in reality and establishing the facts in accordance with reality is the starting point, the precondition and basis for a just decision, while the basic (main) purpose of court proceedings is a just decision, which requires, in difficult cases and particularly difficult cases, to include in the legal (juridical) basis of the decision the normative requirements of justice (carriers of a just decision), which value is commitment-generating, obligation-making, and which “demands” that “everyone be given his or her own”.