ПРИРОДА ЈУРИСТИЧКОГ ЗАКЉУЧКА
THE NATURE OF JUDICIAL CONCLUSION

Summary/Abstract: The paper examines the problem of the nature of judicial conclusion, starting from the premise of the factual position. Therein, the hypothesis is tested which underlines that the smaller premise has a more complex structure than it seems at a glance, i.e. apart from asserting and qualifying the facts, its structure embodies an explanation of facts which link these two aspects of the premise of factual situation. The explanation of facts is a dimension of the small premise which fundamentally determines the nature of the judicial conclusion, i.e. points to the fact that legal reasoning has at the same time a logical, theological but also a causal nature (legal reasoning as tehne, phronesis and episteme). As a consequence of this approach follows a conclusion that the procedure of qualifying the facts has predominantly an inductive character, meaning that the substance of a general legal norm is „filled“ starting from the factual situation. This view corresponds with the constructive theory of interpretation which stresses that interpretation is not only revealing but also forming the meaning (valuation on the basis of a relevant context).

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