THE CONSCIENCE OF JUDGES AND APPLICA nON OF LEGAL RULES The book is
devoted to the problem of the influence of moral judgements on the
result of judicial decision-making in the process of application of
the established (positive) law. It is the conscience of judges that
takes the central place in the research. Conscience is understood
in the meaning developed in the theory of Thomas Aquinas as the
complex capacity of the human being to make moral judgements which
represent acts of reason on the question of what is right or wrong
in a particular situation. The reason why we need a theory of
conscience in making judicial decisions lies in the nature of the
positive law itself. On the one hand, there is an intrinsic
conflict between the law as the body of rigid rules and the law as
an living experience of those who are involved in social
relationships. This conflict particularly finds its expression in
the collision of strict justice and equity. The idea of equity does
not reject the importance of rules in legal life. What is rejected
is an idolatrous attitude to the rules when the uniqueness of a
human being, his well being and happiness are disregarded and
sacrificed in order to fulfil the observance of the rules. The
rules themselves are neither good or bad. What makes them good or
bad is their application."
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