About the Creative Role of Judges

By Philipp Fabio


In Bernd Rüthers’ latest book «The Silent Revolution from the Rule of Law to the Rule of Judges: Legal Methods and the Constitution. An Essay», the legal scholar explores the relationship between legal methods and judicial creativity in today’s German legal system. He offers many criticisms of Germany’s higher courts, including the Constitutional Court, which in his view all lean toward modern forms of free law (Freirecht). Rüthers finds that the causes for this are the courts’ inattention to the distinction between ius conditum and ius condendum, their methodological eclectism, and the prevalence of so-called ‘objective modes’ of interpretation. His arguments are a general invitation to legal scholars to reflect more broadly on the persistent validity of a positivist approach based on the ideal of legislative supremacy and, to this Italian reviewer, a particular call to Italian scholars to reflect on the state of things in the Italian legal system. This reviewer advances on Rüthers’ analysis and concludes that in today’s complex legal environment a positivist approach can be adequately justified in terms of efficiency, namely in the capacity of a legal system to competently combine a high degree of legal certainty with the intrinsic dynamism of legal interpretation. But the reviewer also suggests that this would require, at least in Italy, a comprehensive reconsideration of the role of the legal community in general and of the work legal scholars in particular.