Philosophy of Right for Lay Judges. Hegel’s and Fichte’s Perspective

Keywords: participatory judiciary, lay judge, honorary judge, Hegel, Fichte, Radbruch, political transformation of society and public institutions, alienation of law and society

English abstract: The article, following an outline of the historical context, designs a normative justification of citizens’ participation in the public administration of justice on the basis of the philosophy of right of Georg W.F. Hegel and Johann G. Fichte. Their complementary philosophies of right provide solid foundations for a modern philosophy of right for lay judges (also called honorary judges). It is further argued that Hegel’s concept of the honorary judge as a subject who realizes their right to political and legal self-awareness and is integral to the administration of justice has greater and more topical potential than its equivalent in Fichte’s writings. Fichtean honorary judges act outside the legal framework, by virtue of a civic contract on reciprocal judicial support in emergency. All inquiries, documented with sources, due to the novelty of the issue, lead to the following conclusions: 1) lay judges’ activism according to Fichte “invalidates” a wrongful, defective or unjust law. In this way Fichte anticipates Radbruch’s Formula; 2) Hegelian honorary judges have impact on the real transformation of modern, atomistic society of idiotes (individuals with private interests) into a society of polites (as in the ancient Greek politeia or Roman res publica), transform institutions into public bodies in the strong sense of this term; finally, they prevent the alienation of society and law.

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