This paper constitutes an appeal to redefine the concept of the fallibility of final judicial decisions. Its standard understanding, based on Hart's work, is far more problematic than is usually assumed. The author shows that the usual understanding gives rise to a contradiction. Namely, that it is (sometimes) legally correct to do that which is not legally correct. The author then briefly tests three methods of solving the problem. He concludes that none of them speaks in favour of distinguishing between the finality and infallibility of judicial decisions. Accordingly, he reexamines Hart's motivations for embracing that distinction and identifies a misstep in his reasoning.
Kristan, A. (2016). A paradox of Hart's fallible finality. ANALISI E DIRITTO, 2016, 339-344.
A paradox of Hart's fallible finality
Andrej Kristan
2016
Abstract
This paper constitutes an appeal to redefine the concept of the fallibility of final judicial decisions. Its standard understanding, based on Hart's work, is far more problematic than is usually assumed. The author shows that the usual understanding gives rise to a contradiction. Namely, that it is (sometimes) legally correct to do that which is not legally correct. The author then briefly tests three methods of solving the problem. He concludes that none of them speaks in favour of distinguishing between the finality and infallibility of judicial decisions. Accordingly, he reexamines Hart's motivations for embracing that distinction and identifies a misstep in his reasoning.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
