Judge’s Empire? - Interview with Rudolf Bernhardt
1 European Journal of Legal Studies, 2007, 13-21
9 Pages Posted: 7 May 2012 Last revised: 9 Aug 2018
Date Written: December 1, 2007
Abstract
The role of the judge has probably been subject to discussion since the need of dispute resolution was first identified. In developed legal systems, adjudications nowadays are accepted as an integral part of society. On an international level, recent legal treaties provide a powerful position for the judge: Art. 220 § 1 EC states that the EC Courts ensures “that in the interpretation and application of this Treaty the law is observed”. Art. 32 § 1 ECHR describes the role of jurisdiction as to “extend to all matters concerning the interpretation and application of the Convention and the protocols thereto”. But not one of the international treaties empowers the judge to make or even develop law. Nevertheless, there is no doubt that adjudications are an integral part of the law making process, though critics continuously argue that international judges exceed their limits.
The legal philosopher Dworkin defines the role of the judge through the image of Hercules, an omniscient judge: “When [Hercules] intervenes in the process of government to declare some statute or other act of government unconstitutional, he does this in service of his most conscientious judgement about what democracy really is and what the Constitution, parent and guardian of democracy, really means”. However, Dworkin sees Hercules as a server of the law; that is why his book, where this statement was made, was called Law’s Empire. If judges exceed their limits and step out of the legal framework provided, we head to a ‘Judge’s Empire’ beyond the law; or, in German terminology, the Rechtsstaat would emerge to a Richterstaat. We had the opportunity to ask Prof. Dr. Bernhardt about his opinion on whether the international system had already emerged as such a ‘Judge’s Empire’. With a twinkle in his eye, he replied that we ought to take caution, because agreeing with Dworkin’s doctrine would mean perceiving that “any judge’s opinion is itself a piece of legal philosophy”.
Keywords: Role of the Judge, Bernhardt, ECJ, ECHR
JEL Classification: K33, K41
Suggested Citation: Suggested Citation