4This explains why our view of the primacy of the egg does not only refer to legal history, but emerges from a deeper recognition that everyone is capable of doing justice – and doing evil in the same way. From the point of view of legal theory, it is also evident that, for example, the codification of Justinian, if one is honest, was only a summary set of views that existed before the codification and that had been developed for at least a thousand years. It is also difficult to complain about it. 9The democratic legal tradition does not therefore arise from the unconscious assumption that the legislative or even the judicial are considered to the highest degree as inviolable and, in this sense, taken for granted. The democratic legal tradition is not presumptuous, even in the inquisitorial sense of the word. With the latter, it goes without saying that it depends on its authoritarian Catholic historical origin, and that is why Giordano Bruno and countless witches, as Professor Vladimir Bayer pointed out, were burned at the stake. The inquisitorial criminal procedure is an exemplary example of appalling abuses and aberrations based on the very authoritarian-sadistic assumption that someone, in this case dominicanes, is in possession of divine truth. It is therefore difficult to agree with Mr d`Almeida`s assertion that the `mixed` European legal system is legally acceptable, even if we ignore the fact that Mr d`Almeida is elliptically evading the issue from the outset. 28And so on. At the end of this reply to Mr d`Almeida, I sincerely thank him, without any ironic intentions, for having read my work and for having analysed it meticulously and critically.
However, I must add with bitter aftertaste that this is the first reaction to Minerva`s Owl I have seen. Regardless, the title itself expresses the author`s nostalgia for the time when the moral dilemmas chosen and addressed in the book were still considered important. In truth, Minerva`s owl spreads its wings only at dusk. 21When Miha Pohlin first described the basics of Slovenian grammar, he must have thought he was describing the grammar and syntax of a living Slovene language. This is a descriptive feature that we are talking about here. However, as soon as he described the grammar and syntax of a living language, he also prescribed it. This is a prescriptive function. Clearly, prescriptive and descriptive functions are interwoven in law, including through the so-called normative integration process. If Mr. d`Almeida claims that this is difficult to understand, so this difficult understanding of something that is otherwise simple and logical is most likely a consequence of the fact that Mr.
d`Almeida feels compelled to defend the continental legal tradition. However, with regard to the latter, as indicated above, we maintain that it does not stem from a democratic tradition; Articles 5 and 6 of the ECHR are proof of this. „Be without substance.” Merriam-Webster.com Dictionary, Merriam-Webster, www.merriam-webster.com/dictionary/be%20without%20substance. Retrieved 28 October 2022. What are the implications of this definition? Can it fulfil its central function, the delimitation of the notion of substance? And if not, how can we deal with the multiple requirements of substance law and the property rights granted directly to substances? 18 A judicial case can be impartial only if, alongside the passivity of the arbitrator, on the one hand, and his active ambivalence, on the other, ultimate bias flourishes. The book provides a detailed analysis of all these topics. However, Mr d`Almeida apparently could not accept this. The question arises, why not. A simple answer would be that Mr d`Almeida, who passionately adheres to the Spanish legal tradition, is in fact biased and cannot afford to accept a thesis that characterises inquisitorial and mixed criminal proceedings as abominations. „Controlled analogue” means a substance whose chemical structure is substantially similar to that of a controlled substance. An analogue of a controlled substance is treated as a controlled substance for criminal law purposes.
A substantive question distinct from a question of form relating to pleadings, affidavits, charges and other legal instruments implies the sufficiency, validity or appropriateness of the instrument as opposed to its method or style. 15I have examined in detail the problem of events irretrievably lost in the past in a number of separate opinions in the ECtHR (e.g. Saadi v. Italy, Application No 37201/06, judgment of 28 February 2008). The fact is that the majority of legally relevant events are not repeatedly historical. That is why they cannot be rebuilt. Although they can be simulated, they cannot be repeated. 24 As much as the basis of due process is an alternative to resolving disputes by force, it is clear that all violent forms of judicial domination (deception, malice) are permissible under this theory and only this theory. The eminent philosopher Barry Stroud speaks of a logical necessity with which he intuitively presents the possibility that in a given discussion, not necessarily legal, we will force the adversary, if he at least shares the original axioms with us, to admit that he is not right. We demonstrated that our claim was logically inevitable, forced to see that two plus two equals four, and so we defeated it. 2This is a continental view of the relationship between substantive and procedural law. However, this perception is completely reversed in the Anglo-Saxon legal system, where procedure as primary and substantive law is perceived as a centuries-old accumulation of case law, the result of individual proceedings.
It goes without saying that this perspective is also changing dramatically in continental Europe. Clearly, the precedents of the Supreme and Constitutional Courts and the European Court of Human Rights are the result of actual proceedings. Thus, in this context, the form essential to the development of the substance is essential. In his careful review of my book La Chouette de Minerva, M. Duarte d`Almeida polemics the question of the nature of law in its historical origins. Given that neither Mr d`Almeida nor I are legal historians, or at least Romanists, it is probably not even worth starting a polemic on this issue. My basis is not that of legal history, but Hobbesian and practical. In any anthropological situation that requires first the restoration of order and peace, and then of the rule of law, it is obvious that the primitive system of jurisprudence must begin without any substantial, explicit and articulated basis. Samoa also has a dispute settlement service, although it is clear that the substantive rules for determining what is fair and what is not are not necessarily written or explicitly conditioned by tradition. Nevertheless, the service must work.
16The saying that history is written by the victor certainly underscores Scout Peter`s dilemma. However, in view of legal requirements, past historical events which form the basis of a judgment of any kind must be considered in a particularly objective and impartial manner. I specifically referred to this issue in my separate opinion on the Kyprianou case, which deals with the issue of so-called contempt of court. The fact is, however, that the objective recurrent effect according to epistemological laws in science is guaranteed by the objectivity of a scientific experiment that lacks justice. It is misleading when, in science, the creator of the hypothesis seems to be the same one who proves it. This is misleading because a scientific hypothesis is just a falsifiable hypothesis that can be proven false by others. Thus, in science, the Creator hypothesis is open not only to objective experimentation, but also to critical subjective investigation by other scientists. However, the latter is not legally exercised, even by the courts of appeal, which in principle do not deal with the facts at all. The problem of the continental investigating judge, threatened with extinction as an institution even in France, arises in its entirety from the abusive merging of the functions of formulating and confirming a hypothesis (see my recent separate opinion in Vera Cruz v. Spain). It goes without saying that, from a historical point of view, the investigating judge is an interrogator in the inquisitorial criminal procedure and is therefore closely linked to the Inquisition and torture. Therefore, the assimilation of the formation and verification of a hypothesis is unacceptable.
In contrast to the authoritarian contamination of continental procedure according to the inquisitorial tradition, the functions of formation or proposal and testing of a hypothesis in adversarial proceedings are completely distinct in the common law tradition. The actions of the defense are opposed to the active role of those who legally articulate a hypothesis (the prosecutor), while the jury, or even a passive judge, does not care which of the two theses will eventually prevail.