Abstract

Talking about a "creative role of judge", in the strong sense of "law making" or in the weak, but misleading, sense of discretional interpretation of the law in force, amounts to denying the classical principles of the submission of judge to the law and of separation of powers. Therefore it declares the collapsing of the rule of law. The paper shows the mistakes underlying these view of judicial activity, and namely the the mistakes made by hermeneutics: A narrow understanding of the rule of law; a view of empirical and judicial knowledge that is unsound from the epistemological point of view; an old-fashioned contraposition between abstract legality and concrete justice and the embracing of an alternative reconstruction of judicial reasoning that is completely focused on facts instead of norms.