The World of Law: A Treasury of Great Writing about and in the Law, Short Stories, Plays, Essays, Accounts, Letters, Opinions, Pleas, Transcripts of Testimony; from Biblical Times to the Present - Vol. 2

By Ephraim London | Go to book overview

Piero Calamandrei


THE CRISIS IN THE REASONED OPINION
from Procedure and Democracy

The most important and most typical indication of the rationality of the judicial function is the reasoned opinion.

In all modern codes of procedure, whether civil or criminal, a reasoned opinion is prescribed as one of the requisites of the decision. The person who is interested only in the logical aspect of the decision finds the state ment of the premises of the syllogism in the reasoned opinion and the conclusion of the syllogism in the judgment. The requirement that there be a reasoned opinion is considered so important in Italy that it has been placed in the Constitution, where it is stated that "all judicial acts must be reasoned" (Art. 111).

The major function of the reasoned opinion is an explanatory or, one might say, a pedagogical one. No longer content merely to command, to proclaim a sic volo, sic iubeo from his high bench, the judge descends to the level of the parties, and although still commanding, seeks to impress them with the reasonableness of the command. The reasoned opinion is above all the justification of the decision and as such it attempts to be as persuasive as it can. Ever since justice descended from heaven to earth and the idea gained ground that the judge is a human being and not a supernatural and infallible oracle to be adored, whose authority is beyond question, man has felt the need of a rational explanation to give validity to the word of the judge. And the reasoned opinion is precisely that part of the decision that serves to demonstrate the justice of the decision, and to persuade the losing party that the

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The World of Law: A Treasury of Great Writing about and in the Law, Short Stories, Plays, Essays, Accounts, Letters, Opinions, Pleas, Transcripts of Testimony; from Biblical Times to the Present - Vol. 2
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