How can legal interpretation change the legal order into legal disorder? : (Lessons from the Czech Republic)
The result's identifiers
Result code in IS VaVaI
<a href="https://www.isvavai.cz/riv?ss=detail&h=RIV%2F00216208%3A11220%2F23%3A10458492" target="_blank" >RIV/00216208:11220/23:10458492 - isvavai.cz</a>
Result on the web
<a href="https://verso.is.cuni.cz/pub/verso.fpl?fname=obd_publikace_handle&handle=Ipn3fhzMrR" target="_blank" >https://verso.is.cuni.cz/pub/verso.fpl?fname=obd_publikace_handle&handle=Ipn3fhzMrR</a>
DOI - Digital Object Identifier
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Alternative languages
Result language
angličtina
Original language name
How can legal interpretation change the legal order into legal disorder? : (Lessons from the Czech Republic)
Original language description
An opinion long prevailed in the Czech Republic that a judge is bound, in his decision-making, only by statutory law and by international treaties which, according to the Constitution of the Czech Republic, have priority over statutory law. The fact that a judge is bound by statutory law was mostly understood in that the judge is bound by the "word of the statutes". A judge thus could not be formally bound by someone else's interpretation of the statutes, i.e. by case law. However, both these basic assumptions began to change radically in the Czech Republic, especially following the adoption of the new Civil Code in 2012. This article therefore aims to present the transformations in the binding effect of case law in the Czech Republic at the beginning of the 21st century and, in doing go, it will concentrate on the yet insufficiently examined question of limits to judicial law-making in the sense of constructive interpretation of statutory law by courts.When a judge applies the law, and thus necessarily also interprets it, he must ask two fundamental questions: (i) Whether he/she is bound by interpretation of the statutory law which has already been provided by someone else, and the judge is thus obliged to adhere to this line of interpretation. (ii) How should he/she proceed in the interpretation, which comprises the question of what methods of interpretation he/she should use, in what order and what significance should be attached to these methods?The ambition of this article is to show why a "discursive" or "conditional binding effect of case law", on the one hand, and a judge's competence to interpret the law, on the other hand, can lead to fragmentation of the Czech legal order and contribute to transformation of the law from an order to a disorder, and how these unfavourable tendencies can be eliminated, or at least mitigated.
Czech name
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Czech description
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Classification
Type
J<sub>imp</sub> - Article in a specialist periodical, which is included in the Web of Science database
CEP classification
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OECD FORD branch
50501 - Law
Result continuities
Project
<a href="/en/project/GA19-10723S" target="_blank" >GA19-10723S: What unifies current law and what fragmentises it from the perspective of legal theory and judicial practice?</a><br>
Continuities
P - Projekt vyzkumu a vyvoje financovany z verejnych zdroju (s odkazem do CEP)
Others
Publication year
2023
Confidentiality
S - Úplné a pravdivé údaje o projektu nepodléhají ochraně podle zvláštních právních předpisů
Data specific for result type
Name of the periodical
Review of Central and East European Law
ISSN
0925-9880
e-ISSN
1573-0352
Volume of the periodical
2023
Issue of the periodical within the volume
48
Country of publishing house
NL - THE KINGDOM OF THE NETHERLANDS
Number of pages
31
Pages from-to
32-62
UT code for WoS article
000972709000002
EID of the result in the Scopus database
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