Judicial practice as a manifestation of secondary institutional justice

Abstract

When the general wording of the legal provisions creates an inconvenience for its application in individual cases, the law can also send the judge to the justice as source of law to obtain an instruction from it to authorize the case that interests him. This is particularly the case when the legislation has not given a technically formulated legal standard or when the existing legal standards do not contain all the necessary details of that decision. Such situations may exist as gaps in the legal system. However, the legislator can also deliberately create them so that the judge can better align the legal norms with the particularities of the many and varied cases that public life gives him. The judge derives its validity from the general state of law, which refers to justice as a measure to solve a case, creates on its basis a new individual legal norm and institutionalizes it through its judgment. The new norm, which the judge has formulated, is verified backwards in the entire pillar of abstraction and the summary of the empirical facts of those same separate legal norms.