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Article

Slovenian

ID: <

10.4000/revus.682

>

·

DOI: <

10.4000/revus.682

>

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Abstract

If we are lacking in our times a referential model for judges, it is paradoxically not as much because of the absence of references, but rather because of their abundance. This abundance is, of course, a sign of post-modernity, which likes to play with travesties. It is also true that in these times a judge has many roles to play. So, what is he to choose from the magazine of the accessories of justice? Which is the dress that would suite best his multitask profession? In order to present a referential model for a complex job, the author first presents us with two extreme though typical figures of juridicity: Jupiter and Hercules. Jupiter stands for the classical (continental) model of law: the (transcendental and sacred) legislator and his abstract and general code; legal and political monism; deductive and linear rationality spreading down the pyramid through a hierarchy of mostly imperative norms; a time, which is oriented towards a controllable future. Hercules, on the other hand, inverts this picture of law. It also inverts the pyramid of norms. It is the judge and not the legislator who is here in power. The law is found not in the code but in every single and concrete judicial decision. Legal monism is thus lost in proliferation of case-law; political monism in dispersion of law-making authorities. Deductive rationality of rules is substituted for inductive rationality coming from facts. Practical performance is given preference over logical coherence. The time is, in this picture, discontinued. These two figures may well give an inadequate representation of our legal reality. The efficacy of such representations, however, shall not be underestimated. This is why these models are rather being softened and accommodated than eliminated from our schoolbooks and imaginary. It is often shown how Jupiter discuses with his people; and how Hercules is able to stay above his human condition… Nonetheless, is it not time to think complexity of law from within, instead of through a complication of some simple models? This is what the author tries to accomplish by sketching the figure of Hermes. Insisting on the multiple roles and players of the legal game, the author shows why law is more a circulation of meaning, than a truth-discourse. Instead of by monism and dispersion, the model of post-modern law is characterised by articulated pluralism. Binary absolutism (valid/invalid, permitted/prohibited) gives place to relativism and gradualism. Instead of linearity, there comes not vicious circularity but productive recursivity. Instead of closure and determinism of discourse, Hermes manifests controlled inventiveness of a radically hermeneutic legal discourse. He is supposed to show the way to a theory of multiple law; a theory of law as a multidirectional circulation of meaning; a game theory of law. Hermes is the great communicator, a messenger of gods. He is himself the god of intermediation and, as such, he seems to be the most representative character of the post-modern legal discourse.

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